MARRIAGE REGIMES IN SOUTH AFRICA

In terms of the laws of South Africa there are two types of marriages:

  • marriages in Community of Property
  • marriages Out of Community of Property:
    • excluding Accrual
    • including Accrual

In South Africa the laws that govern your marriage are determined by the domicile of the Husband, at the time of the marriage.

If you do not sign an Antenuptial Contract then your marriage will automatically be In Community of Property in terms of South African law.

What are the effects of the various regimes?

MARRIAGE IN COMMUNITY OF PROPERTY

Upon marriage the separate estates of both the Husband and Wife form a Joint Estate. All of the assets owned by the couple and any debts
incurred before marriage, as well as any assets which may be acquired or debts which may be incurred after the marriage, form part of the
Joint Estate. The Joint Estate is administered by both of them equally. They both own an undivided half share in the Joint Estate.

 

 

The greatest drawback with this regime is the lack of protection of the assets of the Joint Estate from creditors of either party. In the event
of the death of one of the spouses the entire Joint Estate is administered and can be “frozen” for a while, creating difficulties for the surviving spouse.

MARRIAGE OUT OF COMMUNITY OF PROPERTY (EXCLUDING THE ACCRUAL)

An Antenuptial Contract ensures that a marriage will not be regarded as being In Community of Property.

Upon marriage each spouse retains separate ownership of his/her own assets that were acquired before the marriage,
and any assets acquired individually during the marriage. Each spouse is liable for his/her own debts.

On termination of the marriage each spouse retains his/her own assets.

This regime offers protection from each other’s creditors. However, it does not necessarily deal with the non-monetary
contributions made by each party during the marriage fairly. Upon termination of the marriage, neither party will have
a claim against the other spouse’s estate, irrespective of the growth of the respective estates.

MARRIAGE OUT OF COMMUNITY OF PROPERTY WITH ACCRUAL

This property regime was introduced by the Matrimonial Property Act of 1984.

It is the middle ground between joint ownership and complete separation of ownership.

The Accrual system automatically applies to all Out of Community of Property marriages entered into after the
commencement of the Act, unless expressly excluded in an Antenuptial Contract.

The Accrual system recognises the contributions both spouses make during the existence of the marriage,
which may not necessarily be monetary, e.g. the raising of a family by the one spouse, during which period
that spouse’s earning capacity might be diminished.

The Accrual system provides that spouses should share equally in the growth of their estates, upon the
termination of the marriage, by either death or divorce. it is important to note the Accrual is only calculated
upon termination of the marriage and creditors can not force a prior calculation of an Accrual.

All assets owned before the marriage can remain the separate property of each spouse, and may be excluded
from the calculation of the Accrual.

The Accrual is calculated by taking account of the amount by which each spouse’s estate has increased in value
during the marriage. The smaller Accrual is deducted from the larger Accrual and the difference is divided in half.
This final amount is the amount that each spouse is entitled to upon the dissolution of the marriage. The outcome
is that they can share equally in the amount by which their estates have increased jointly during the existence of
the marriage.

Certain assets such as donations and inheritances are excluded from the Accrual system, and are regarded as
having been acquired by a particular spouse only during the marriage.

HOW CAN AUSTEN SMITH ASSIST YOU?

Protect your financial future with an Antenuptial Contract.

We invite you to contact our Fiduciary Services Department for advice on the legal implications of your
impending marriage.

Click here for contact details