Family Extended Lecture Notes: Marriage Summary
Marital Property Basics
What is marital property? Marital property means property owned by people who are married
to each other. This includes the family home and everything the couple owns: cars, clothes,
furniture, appliances and the funds in their bank account. A couple’s matrimonial property
system also regulates the couple’s debts
Matrimonial property systems: A matrimonial property system is a set of rules which
determines who owns the marital property, who owes the debts, whether spouses can sell or
give things to other people and how the property should be shared out when the marriage
ends
The most important matrimonial property systems in South African civil law are:
1. In community of property: The spouses share everything, they own everything jointly
2. Out of community of property: The spouses share no property. Ownership of all the
property is separate: husband is sole owner of his property and money and the wife is
the sole owner of hers
3. Accrual system: The spouses share gains made during the marriage, during the
marriage each owns his or her property separately, but at the end of the marriage the
spouses share any growth or increase in their property that occurred during the
marriage
Marriages in community of property
The ICOP system is the default matrimonial property system in South African civil law. This
means that if a couple marries in SA they will be married ICOP unless: (1) the couple signs
an antenuptial contract which states that they do not wish to be married ICOP (2) the husband
is domiciled in another county where the default matrimonial system in OCOP
- The ICOP is now the default matrimonial property system for couples marrying in
terms of ACL (if there is only on wife)
1
,When couples marry ICOP, the share everything: everything they have when they marry and
everything, they acquire during the marriage automatically falls into their joint estate
- Estate means everything a person owns and their debt
- An asset is anything of monetary value
- The joint estate occurs by operation of the law the moment the couple marries. The
spouses’ shares are indivisible (the shares cannot be divided in half) and the spouses
are tied co-owners
- Neither spouse can deal with their half of the estate independently
- All the debt also falls into the joint estate, this means that the spouses are now jointly
responsibly for all debts regardless of which spouse incurred them
- The “share everything” principle applies during the marriage as well, all the money
the couple makes during the marriage and all the things they acquire fall into the joint
estate.
- There is said to be a futility of economic transactions between spouses married ICOP,
as every asset is already co-owned by the other
When the marriage ends, the joint estate is automatically divided in half, each spouse receives
their half-share regardless of how much money they put into the joint estate or how much
they spend during the marriage
2
, Separate property: Assets that do not fall into the joint estate
The general rule is that all assets fall into the joint estate and become the joint property of
both spouses. However, occasionally there are assets that do not fall into the joint estate and
instead become separate property of one of the spouses
- Separate property is property owned by only one of the spouses when the couple is
married ICOP
The most import way of excluding assets from the joint estate is excluding them through the
use of an antenuptial contract. The spouses can sign an ANC which provides that certain
assets that they own at the time of the marriage will not fall into the joint estate
- The principle pretium succedit in locum rei and res succedit in locum pretii apply
which means: the price replaces the thing and the thing replaces the money
Assets can also be excluded by way of deed of donation or a will: It is common for people to
leave property to their children in their will with the proviso that this property should be
excluded from the joint estate if that child happens to marry ICOP
- The principle pretium succedit in locum rei and res succedit in locum pretii also
applies in the context of separate property obtained through a will or donation
Other types of property that are excluded:
- Delictual damages from third parties for non-patrimonial loss. If a spouse is awarded
non-patrimonial damages for a delict committed by a third party, the money does not
fall into the joint estate, but becomes their separate property
- Delictual damages compensating for bodily injury inflicted by the other spouse
- Other exclusions:
1. Engagement and wedding presents from husband to wife were thought of as not
falling into the joint estate
2. If one of the spouses has an usufructuary or fideicommissary interest in a property
that interest cannot fall into the joint estate
3. Costs awarded in a matrimonial action that does not dissolve the marriage become
that spouse’s separate property
4. Parliament from time to time can also decide on certain kinds of assets that should
be excluded from the joint estate
3
Marital Property Basics
What is marital property? Marital property means property owned by people who are married
to each other. This includes the family home and everything the couple owns: cars, clothes,
furniture, appliances and the funds in their bank account. A couple’s matrimonial property
system also regulates the couple’s debts
Matrimonial property systems: A matrimonial property system is a set of rules which
determines who owns the marital property, who owes the debts, whether spouses can sell or
give things to other people and how the property should be shared out when the marriage
ends
The most important matrimonial property systems in South African civil law are:
1. In community of property: The spouses share everything, they own everything jointly
2. Out of community of property: The spouses share no property. Ownership of all the
property is separate: husband is sole owner of his property and money and the wife is
the sole owner of hers
3. Accrual system: The spouses share gains made during the marriage, during the
marriage each owns his or her property separately, but at the end of the marriage the
spouses share any growth or increase in their property that occurred during the
marriage
Marriages in community of property
The ICOP system is the default matrimonial property system in South African civil law. This
means that if a couple marries in SA they will be married ICOP unless: (1) the couple signs
an antenuptial contract which states that they do not wish to be married ICOP (2) the husband
is domiciled in another county where the default matrimonial system in OCOP
- The ICOP is now the default matrimonial property system for couples marrying in
terms of ACL (if there is only on wife)
1
,When couples marry ICOP, the share everything: everything they have when they marry and
everything, they acquire during the marriage automatically falls into their joint estate
- Estate means everything a person owns and their debt
- An asset is anything of monetary value
- The joint estate occurs by operation of the law the moment the couple marries. The
spouses’ shares are indivisible (the shares cannot be divided in half) and the spouses
are tied co-owners
- Neither spouse can deal with their half of the estate independently
- All the debt also falls into the joint estate, this means that the spouses are now jointly
responsibly for all debts regardless of which spouse incurred them
- The “share everything” principle applies during the marriage as well, all the money
the couple makes during the marriage and all the things they acquire fall into the joint
estate.
- There is said to be a futility of economic transactions between spouses married ICOP,
as every asset is already co-owned by the other
When the marriage ends, the joint estate is automatically divided in half, each spouse receives
their half-share regardless of how much money they put into the joint estate or how much
they spend during the marriage
2
, Separate property: Assets that do not fall into the joint estate
The general rule is that all assets fall into the joint estate and become the joint property of
both spouses. However, occasionally there are assets that do not fall into the joint estate and
instead become separate property of one of the spouses
- Separate property is property owned by only one of the spouses when the couple is
married ICOP
The most import way of excluding assets from the joint estate is excluding them through the
use of an antenuptial contract. The spouses can sign an ANC which provides that certain
assets that they own at the time of the marriage will not fall into the joint estate
- The principle pretium succedit in locum rei and res succedit in locum pretii apply
which means: the price replaces the thing and the thing replaces the money
Assets can also be excluded by way of deed of donation or a will: It is common for people to
leave property to their children in their will with the proviso that this property should be
excluded from the joint estate if that child happens to marry ICOP
- The principle pretium succedit in locum rei and res succedit in locum pretii also
applies in the context of separate property obtained through a will or donation
Other types of property that are excluded:
- Delictual damages from third parties for non-patrimonial loss. If a spouse is awarded
non-patrimonial damages for a delict committed by a third party, the money does not
fall into the joint estate, but becomes their separate property
- Delictual damages compensating for bodily injury inflicted by the other spouse
- Other exclusions:
1. Engagement and wedding presents from husband to wife were thought of as not
falling into the joint estate
2. If one of the spouses has an usufructuary or fideicommissary interest in a property
that interest cannot fall into the joint estate
3. Costs awarded in a matrimonial action that does not dissolve the marriage become
that spouse’s separate property
4. Parliament from time to time can also decide on certain kinds of assets that should
be excluded from the joint estate
3
