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Getting married? Know which marital system is best for you!

Getting married? Know which marital system is best for you!

Arisha Rajaram

The Marriage Act 25 of 1961 provides for 4 requirements that need to be met, prior to getting married, which are:

  • the parties need to have the capacity to act – be over the age of 18 and in sound mind;
  • consensus – both parties must agree to the marriage;
  • the marriage must be lawful; and
  • formalities to the marriage must be complied with, for example, there must be a duly appointed marriage officer.

Apart from the above requirements, parties to a marriage must consider the various legal systems when getting married. Each system has certain benefits and consequences, which may impact the parties at certain stages of the marital relationship.

Marriage in Community of Property

Any marriage which is registered without an antenuptial contract is deemed to be a marriage in Community of Property. With this marital system, one of the biggest advantages is that both spouses are entitled to the same rights, fairness and equality as the other spouse. However, a disadvantage is that both spouses are bound by the financial decisions of the other spouse, and both parties would be jointly liable for any debt incurred.

All property accrued by either of the spouses, before or during the marriage, would result in that property forming part of their joint estate. This means that all assets are owned by both spouses are under a single unit of ownership. Each spouse would have an undivided half share of the joint estate, example a 50/50 share.

Where any spouse wishes to act on behalf of the joint estate, they would require the consent of the other spouse in certain instances. In terms of section 15 of the Matrimonial Property Act 88 of 1984 (MPA), this would include, but not be limited to the following instances:

  • where immovable property is being alienated, mortgaged or burdened with a servitude or where real rights are being conferred;
  • any contract dealing with immovable property;
  • where a spouse wishes to alienate, cede or pledge shares, insurance policies, mortgage bonds, fixed deposits and other investments in financial institutions; and
  • where a spouse wants to bind himself/herself as surety.

Out of community of property – no accrual

In order to enter into a marriage out of community of property, an antenuptial contract would have to be entered into by the parties before the marriage is registered.

The advantage of being married out of community of property would be to protect a spouse on insolvency and attachment of the assets of the other spouse.

Section 2 of the MPA provides that every marriage out of community of property is subject to the accrual system, except in so far as that system is expressly excluded by the antenuptial contract.

This marital system means that there is no automatic sharing of assets or wealth between spouses. On date of marriage each spouses’ assets and debts remain separate, and on date of dissolution of the marriage, the spouses are not entitled to the other’s assets and/or wealth, and all debts incurred by either spouse would be due by that spouse.

This system may seem unfair since it does not take account contributions to a marriage which are not financial, for example, caring for the home and/or family.

Out of community of property – with accrual

This marital system would need to be registered after signing an antenuptial contract, and it is similar to the above system.

With this system, during the marriage, each party remains independent and their assets are deemed to be separate. At the dissolution of the marriage they share in the accrual accumulated by each other during the marriage.

The principle is based on the idea that both spouses contribute towards the accumulation of the assets, which is a joint effort and it is only fair that both spouses share in the benefits of their accumulated contribution. There is no sharing of losses, only of profit.

In terms of section 4(1)(a) of the MPA, the accrual of the estate of a spouse is defined as the amount by which the net value of his/her estate at the end of the marriage, exceeds the net value of his/her estate at the commencement of the marriage. The accrual is calculated by deducting the net commencement value of the estate from the net end value of the estate.

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