Married Out of Community of Property

Before getting married, couples can enter into an antenuptial contract before a notary public, which is an attorney with an additional special qualification.

The antenuptial contract needs to be concluded before the date of the marriage and must be registered at the Deeds Office within 3 months from date of signature.

What is "Out of Community of Property"?

By concluding an antenuptial contract, parties will exclude ‘community’ of property which means each party will maintain a separate estate with their own assets and liabilities.

Advantages of "Out of Community of Property"

This type of marriage regime has some advantages.

• Each party stays the owner of their own assets and are free to transaction with same as they deem fit.
• They are also not liable for each other’s liabilities / debts, unless they have signed some sort of surety.
• Insolvency or other court proceedings against one party therefore may have no effect on the other party and he/she will enjoy complete protection from the other party’s creditors.
• The parties also do not have to share their (separate) estates with each other.

Disadvantages of "Out of Community of Property"

There is also some disadvantages associated with the out of community of property marriage regime.

• The financially weaker party will not share in the estate of the financially stronger party. This may feel unfair when you have one party that never worked, but looked after the household and/or children.
• Parties also have to enter into an ante-nuptial contract for this regime to be in force, bringing with it some additional costs.

How does "With Accrual" affect matrimonial property?

The parties can also choose to incorporate the accrual system in their anti-nuptial contract.

The effect of the accrual system is that each party’s property remains separate for the duration of the marriage, but at the time of death or divorce their estates are adjusted so that the difference in accrual between the two estates is divided equally.

The accrual amount or portion is calculated by taking the increase of the nett value of the estate from the date of marriage to date of death or divorce.

Bailey Haynes Inc. - Family Attorneys in Cape Town

For more information on the Out of Community of Property Marriage regime and assistance with your antenuptial contract, please contact our attorneys in Cape Town.