At some point in time, almost all of us contemplate marriage. Amidst the fluttering heartbeats, swooning and picking out the perfect attire, flowers and music for that special day, make some time to consider the reality of the legal consequences of marriage.
In South African law, there are two matrimonial property regimes: in community of property and out of community of property with or without accrual. Should you not enter into an Ante-nuptial Contract (ANC) before your date of marriage, you will automatically be married in community of property.
Practically, this means that from the date of marriage your estates are joined. In other words, you share both your assets (property and money) and your liabilities (debts). Therefore, should one spouse default on a debt, the creditor can claim against both the spouses. Likewise, should one spouse be declared insolvent, the entire joint estate will be sequestrated. Upon dissolution of the marriage through death or divorce, your spouse will be entitled to claim half of the joint estate, regardless of the contribution he may or may not have made in increasing the monetary value of estate.
Bearing in mind the serious financial liability that exists in community of property marriages, law has been passed that requires a spouse to provide written consent to certain transactions such as selling or buying a house, applying for a mortgage bond, signing as a surety for someone else, entering into a credit agreement and the like.
It is important to bear in mind that should you get married in community of property and later decide that you would prefer to change your matrimonial property regime to one out of community, you can do so but it involves a High Court Application that is very expensive.
