Despite ongoing media coverage on the subject, a surprisingly large number of people still do not understand the different legal marital property regimes which apply in South Africa. In this post, we answer the question, what is the difference between in and out of community of property?
What is the difference? In Community Of Property
The more usual practice today is to marry with an ante-nuptial contract, which is taken out before the marriage. Where this (the conclusion and registration of an ante-nuptial contract) does not happen, the couple will in law be married in community of property, which in effect means that all the assets they bring to the marriage are jointly owned by them. This applies even if they have separate bank accounts and run separate businesses.
Lawyers generally do not like the community of property arrangement because it makes it possible for the creditors of one spouse to make legal claims on the other. There will be instances where even in the best marriages one of the partners will get into financial difficulties through overspending or business failures. In these circumstances it is in our view not right that the innocent spouse should have to pay for the partner’s mistakes.
The community of property arrangement also has the major drawback that if one partner dies the surviving spouse has no access to the estate until it has been wound up by the executor. This has on many occasions resulted in hardship for the surviving spouse, especially if the offspring of the marriage or relatives are unable to help in the interim period.
The community of property arrangement also means that all contracts have to be signed by both partners and this can be a cumbersome process.
There will, however, always be a few people who opt for the community of property arrangement because they see it as showing complete trust in one another and a willingness to share all that they have. They dislike the ante-nuptial contract because it can be construed as a safeguard against divorce and as they enter the marriage they do not want to think they have that possibility in mind.
What is the difference? Out Of Community Of Property
The ante-nuptial system’s strength is that it recognises that the two people in the marriage are entitled to separate estates to which the other partner should not have legal access.
The disadvantage of this system is that if things do go wrong, and the couple split, the breadwinner’s assets may be many times greater than that of his or her spouse and the unpaid effort into the marriage and the raising of children may go unrecognised.
What is the difference? The Accrual System
To overcome this problem, South African law now allows the estate to be split on the accrual system.
In this system, the assets that have been acquired by the couple since marrying are split 50/50 upon termination of the marriage through death or divorce, which in many cases is a fairer way of doing things. Supposing, however, that the one partner has worked hard and the other simply enjoyed himself or herself, the courts can take it on themselves to limit the accrual clause.
If you are considering getting married and need more information concerning choosing the legal regime for your marriage, please do not hesitate to contact Gunstons.
We’ll look at something musical 🙂