Getting married is a beautiful union between two people which is an exciting and emotional time to be enjoyed by the couple. It can be easy to overlook the legal implications which go hand in hand with this union. It is, however, extremely important for the couple to put some thought into this before they get married. How the couple’s assets and debts are handled during their marriage and distributed when the marriage dissolves (either by death or divorce) is referred to as their matrimonial property system and is governed by the Matrimonial Property Act. In South African law there are three possible matrimonial property systems that a couple intending to get married can choose from:
1. Married in Community of Property
2. Married out of Community of Property with the exclusion of the Accrual System
3. Married out of Community of Property with the inclusion of the Accrual System
Married in Community of Property
If a couple gets married without entering into an Antenuptial Contract the marriage will be one in Community of Property (this is the default system). In terms of this matrimonial property system, the couple will share everything evenly (including each other’s debt). The sharing of each other’s debt is why we always recommend that the couple enter into an Antenuptial Contract. If one partner is indebted to a creditor and they are married in community of property, the creditor can demand repayment from the debtor as well as the debtor’s spouse and can go further and attach the assets of either one of the partners in order to enforce repayment thereof. With an antenuptial contract in place, the creditor will only be in a position to demand repayment from the partner that incurred the debt. The debtor’s spouse and his/her assets are protected from such claims.
Married out of Community of Property with the exclusion of the Accrual System
According to this matrimonial property system, the assets that each spouse brings into the marriage and accumulates during the subsistence of the marriage remain their own. There is a distinct divide between what each spouse owns. If either of the spouses has any debt before the marriage or incurs any debt after the marriage is entered into, the creditor can only enforce repayment thereof from the spouse that incurred the debt. When the marriage ends, either by death or divorce, each spouse retains all of their own assets that were brought into the marriage and which were accumulated during the marriage.
Married out of Community of Property with the inclusion of the Accrual System
This is the most flexible option of the three matrimonial property systems. In this option, each spouse retains the assets that it had when they entered into the marriage. The assets that they accumulate during their marriage are however shared. The debts that each spouse incurs either before or during the marriage will, however, only be recoverable by the creditors from the spouse that incurred the debt. Again, this means that spouses and their assets are protected from the claims of creditors.
Obtaining an Antenuptial Contract
An Antenuptial Contract can be used as a valuable tool to regulate how your assets are divided and distributed upon termination of your marriage. Furthermore, it is the best form of protection from claims against your estate for debts incurred by your spouse. It is for this reason that we always recommend that you enter into a valid Antenuptial Contract before you get married. In order to do this, you will need to sign an Antenuptial Contract in front of a duly admitted Notary Public.
If you have not entered into an Antenuptial Contract you will be deemed to be married in Community of Property. If you would still like the protection of being married out of community of property you will need to follow a more lengthy and expensive procedure which involves bringing an application to the High Court in terms of Section 21 of the Matrimonial Property Act.
If you require any assistance with an Antenuptial Contract or require an application in terms of Section 21 of the Matrimonial Property Act please feel free to contact Xander Naudé of Naude Attorneys - email: xander@naudelaw.com.
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