MATRIMONIAL LAW
TO UNDERSTAND MARRIAGE IN COMMUNITY OF PROPERTY AND OUT OF
COMMUNITY OF PROPERTY, AND THE EFFECT AND IMPLICATIONS HEREOF
ON THE VARIOUS TYPES OF CONTRACTS
Marriage In Community of Property:
Definition: In this type of marriage, all assets and liabilities (whether acquired before
or during the marriage) are jointly owned by both spouses. This means that both
parties share the marital estate equally, and they are both responsible for any debts
incurred during the marriage.
Effect on Contracts:
Both spouses must jointly consent to major contracts (such as the sale of
property, loans, etc.) involving the marital estate.
Creditors can pursue both spouses for debts, which can affect their credit and
financial stability.
Any assets acquired during the marriage form part of the joint estate, so both
spouses have equal rights over them.
Marriage Out of Community of Property:
Definition: This marriage regime separates the property and debts of each spouse.
Assets and liabilities are owned individually unless specified otherwise through an
agreement (e.g., in an antenuptial contract).
Effect on Contracts:
Spouses can enter contracts and own property separately. One spouse’s debts or
assets do not affect the other.
Each spouse is responsible for their own liabilities, and creditors can only pursue
the individual who incurred the debt, not the other spouse.
If an antenuptial contract is in place, the spouses must follow its terms when it
comes to asset distribution.
Antenuptial Contracts (ANC):
Customary Use: Couples can opt for a contract that governs the terms of their
marriage, which is often done before the marriage. This contract can specify whether
the marriage will be in or out of community of property, as well as set terms for how
the estate will be divided.
Implications: This is a crucial document, as it governs the couple’s financial
relationship. If no ANC is drawn up, the marriage will default to being in community of
property.
,Implications for Divorce and Death:
In Community of Property: On divorce or death, the estate is divided equally between
the spouses. This can lead to complicated legal issues if there are significant debts or
assets to consider.
Out of Community of Property: Divorce or death will involve dividing only the
individual’s assets, as there is no shared estate unless otherwise agreed upon.
Marriage with Accrual System:
This is a variation of marriage out of community of property. The accrual system
allows both spouses to share in the growth of the estate during the marriage, but their
individual estates remain separate.
At divorce, the spouse whose estate has grown the least receives a portion of the
growth of the other spouse’s estate.
Impact on Estate Planning:
In Community of Property: Estate planning is more complex due to the shared
ownership of assets. One spouse cannot unilaterally transfer property or make
decisions regarding the shared estate without the other’s consent.
Out of Community of Property: Spouses have more autonomy over their assets. This
makes it easier to plan individual estates, but careful consideration is needed to
ensure that the division of assets aligns with personal intentions.
, DIVORCE ACT, 70 OF 1979, MATRIMONIAL PROPERTY ACT, 88 OF 1984,
MAINTENANCE ACT, 23 OF 1963.
Divorce Act, 70 of 1979:
Purpose: This Act governs the procedures and grounds for divorce in South Africa.
Key Provisions:
Grounds for Divorce: The primary ground for divorce is the irretrievable
breakdown of the marriage. This is presumed after a period of separation (usually
one year). Adultery, physical or mental cruelty, and desertion may also be cited as
specific grounds for divorce.
Divorce Process: The Act sets out the formal process for divorce, including the
filing of a summons in the High Court and the procedures for attending to the
divorce by mutual consent or contested divorce.
Custody of Children: The Act also covers the arrangements for the care and
custody of minor children following divorce. It promotes the best interests of the
child, and decisions regarding custody are made accordingly.
Matrimonial Property Act, 88 of 1984:
Purpose: This Act deals with the property regime that applies in marriages in South
Africa, specifically outlining the consequences of marriage in community of property
and out of community of property.
Key Provisions:
In Community of Property: In this regime, all assets and liabilities are jointly
owned by both spouses. The estate is divided equally upon divorce or death
unless otherwise specified by an antenuptial contract.
Out of Community of Property: This regime separates the assets and liabilities of
each spouse. The Act governs the division of property in the event of divorce
where no antenuptial contract is in place.
Accrual System: The Act allows for a choice of the accrual system, which provides
that both spouses share in the increase in the value of their estates during the
marriage. Upon divorce, the spouse whose estate has grown less than the other is
entitled to a share of the other’s growth.
Amendment of Matrimonial Property Regimes: The Act allows for amendments to
the matrimonial property regime (e.g., switching from community of property to
out of community of property) through an antenuptial contract or postnuptial
agreement, subject to the court’s approval.
TO UNDERSTAND MARRIAGE IN COMMUNITY OF PROPERTY AND OUT OF
COMMUNITY OF PROPERTY, AND THE EFFECT AND IMPLICATIONS HEREOF
ON THE VARIOUS TYPES OF CONTRACTS
Marriage In Community of Property:
Definition: In this type of marriage, all assets and liabilities (whether acquired before
or during the marriage) are jointly owned by both spouses. This means that both
parties share the marital estate equally, and they are both responsible for any debts
incurred during the marriage.
Effect on Contracts:
Both spouses must jointly consent to major contracts (such as the sale of
property, loans, etc.) involving the marital estate.
Creditors can pursue both spouses for debts, which can affect their credit and
financial stability.
Any assets acquired during the marriage form part of the joint estate, so both
spouses have equal rights over them.
Marriage Out of Community of Property:
Definition: This marriage regime separates the property and debts of each spouse.
Assets and liabilities are owned individually unless specified otherwise through an
agreement (e.g., in an antenuptial contract).
Effect on Contracts:
Spouses can enter contracts and own property separately. One spouse’s debts or
assets do not affect the other.
Each spouse is responsible for their own liabilities, and creditors can only pursue
the individual who incurred the debt, not the other spouse.
If an antenuptial contract is in place, the spouses must follow its terms when it
comes to asset distribution.
Antenuptial Contracts (ANC):
Customary Use: Couples can opt for a contract that governs the terms of their
marriage, which is often done before the marriage. This contract can specify whether
the marriage will be in or out of community of property, as well as set terms for how
the estate will be divided.
Implications: This is a crucial document, as it governs the couple’s financial
relationship. If no ANC is drawn up, the marriage will default to being in community of
property.
,Implications for Divorce and Death:
In Community of Property: On divorce or death, the estate is divided equally between
the spouses. This can lead to complicated legal issues if there are significant debts or
assets to consider.
Out of Community of Property: Divorce or death will involve dividing only the
individual’s assets, as there is no shared estate unless otherwise agreed upon.
Marriage with Accrual System:
This is a variation of marriage out of community of property. The accrual system
allows both spouses to share in the growth of the estate during the marriage, but their
individual estates remain separate.
At divorce, the spouse whose estate has grown the least receives a portion of the
growth of the other spouse’s estate.
Impact on Estate Planning:
In Community of Property: Estate planning is more complex due to the shared
ownership of assets. One spouse cannot unilaterally transfer property or make
decisions regarding the shared estate without the other’s consent.
Out of Community of Property: Spouses have more autonomy over their assets. This
makes it easier to plan individual estates, but careful consideration is needed to
ensure that the division of assets aligns with personal intentions.
, DIVORCE ACT, 70 OF 1979, MATRIMONIAL PROPERTY ACT, 88 OF 1984,
MAINTENANCE ACT, 23 OF 1963.
Divorce Act, 70 of 1979:
Purpose: This Act governs the procedures and grounds for divorce in South Africa.
Key Provisions:
Grounds for Divorce: The primary ground for divorce is the irretrievable
breakdown of the marriage. This is presumed after a period of separation (usually
one year). Adultery, physical or mental cruelty, and desertion may also be cited as
specific grounds for divorce.
Divorce Process: The Act sets out the formal process for divorce, including the
filing of a summons in the High Court and the procedures for attending to the
divorce by mutual consent or contested divorce.
Custody of Children: The Act also covers the arrangements for the care and
custody of minor children following divorce. It promotes the best interests of the
child, and decisions regarding custody are made accordingly.
Matrimonial Property Act, 88 of 1984:
Purpose: This Act deals with the property regime that applies in marriages in South
Africa, specifically outlining the consequences of marriage in community of property
and out of community of property.
Key Provisions:
In Community of Property: In this regime, all assets and liabilities are jointly
owned by both spouses. The estate is divided equally upon divorce or death
unless otherwise specified by an antenuptial contract.
Out of Community of Property: This regime separates the assets and liabilities of
each spouse. The Act governs the division of property in the event of divorce
where no antenuptial contract is in place.
Accrual System: The Act allows for a choice of the accrual system, which provides
that both spouses share in the increase in the value of their estates during the
marriage. Upon divorce, the spouse whose estate has grown less than the other is
entitled to a share of the other’s growth.
Amendment of Matrimonial Property Regimes: The Act allows for amendments to
the matrimonial property regime (e.g., switching from community of property to
out of community of property) through an antenuptial contract or postnuptial
agreement, subject to the court’s approval.
