Thinking of getting married?
Before sithungisa ma matching outfit. Have you considered the impact of your marraige regime on your property rights?
[Thread]

Getting married can be quiet a stressful and exciting time all at the same time. The excitement and stress of planning a wedding. Now add to that the stress of estate planning, especially if you already own property prior to the marriage.

Fun fact: https://www.businessinsider.co.za/single-women-are-now-the-biggest-group-of-property-buyers-in-south-africa-larger-than-couples-and-single-men-2019-5

There are principally three types of marriage regimes in South Africa:
- in community of property
- out of community of property with accrual
- out of community of property without accrual.

I can hear someone at the back shouting: what about customary marriages? They are also governed by one of the regimes above - see below.

A marriage in community of property is known as the ‘default’ regime and applies automatically if you haven’t chosen either of the out of community regimes. For many reasons including affordability and religious beliefs it remains the most common of the marriage regimes.

Your estates become ‘joined as one’ and everything you owned before and during the course of the marriage becomes equally and jointly owned, including becoming liable for each others debts. Certain decisions must be made by both parties.

Upon dissolution of the marriage:

- estate will be divided equally between the parties and both parties shall share equally in any benefit or loss of the joint estate
- sharing will include any properties acquired before or during the marriage.
Creditors can attach the assets of both parties.

A delinquent spouse risks the joint estate and a sequestration will affect both parties.

For a marriage out of community of property, parties must enter into an antenuptial contract prior to the date of the marriage and sign such contract in the presence of a notary public. The contract must be registered within three months of its signature to be ‘valid’.

For a marriage out of community of property with accrual, parties agree for their estates to remain separate in the antenuptial contract. Each party is able to make their own decisions, is liable for their own debts and on insolvency the assets are treated separately.

Upon dissolution of the marriage, accrual system will apply. This means the party with the lesser estate will share half of the difference of the estate of the of the party who has shown the larger accrual.

ie Themba’s estate has grown by R500 while Karabo’s estate has only grown by R100. Themba’s estate will be reduced by R100 and half the difference, which will R200 will be paid over to Karabo.

The party with the larger estate could find themselves having to sell or ‘give’ assets to the other party in order to satisfy the half difference claim of that party, especially if they do not have enough liquid cash available.

Assets received via inheritances and donations received from third parties will not be included in this calculation.

For a marraige out of community of property without accrual, parties enter into an antenuptial contract in terms of which they agree for their estates to remain separate. Under this system, parties continue to control their estates separately as they did prior to the marriage.

On dissolution of the marraige, the parties will retain each other their assets and liabilities.

Customary marriages are considered to be automatically in community of property. Parties can choose to sign an antenuptial contract prior to the conclusion of a customary marriage and in such instance, the chosen out of community marriage regime will apply.

Where there are more than 2 parties in the customary marriage, the assets will be split equally amongst the number of parties on the dissolution of the marriage and the party leaving the marriage regime shall be paid their equal share. Accrual calculation will be adjusted to fit.

See full article: https://propertylink.africa/matrimonial-property-regimes-and-how-they-impact-your-property-rights/