Married in Community of Property

In terms of the South African marriage law there are several property regimes which can apply to a marriage.

If a couple does not sign an antenuptial contract before they are married, they are (by default) married in community of property, having the resulting effect that all of their assets will be combined into one joint estate.

Disadvantages of "In Community of Property"

Each party will then be entitled to 50% of the joint estate and most transactions with third parties will require the consent from both husband, wife and/or partner.

Getting married in this way means that all of the assets owned by each party and their liabilities (debts) from before the date of marriage are combined into one joint estate.

The same logic is applicable after the date of marriage, i.e. all of the assets purchased and/or debts incurred will also form part of the joint estate. This brings along certain perils and parties involved in other entrepreneurial and/or business ventures should be very aware of the financial risks involved.

A creditor of one of the parties can very easily lay claim to the majority of the joint estate, leaving the ‘innocent’ party with no protection.

Parties are also vulnerable to insolvency proceedings by a creditor. The entire joint estate will be placed under sequestration, causing great financial prejudice to the parties and also prohibiting them from doing various transactions.

The same will also apply when court proceedings are lodged against one of the parties. An adverse court order or judgment will also then be listed on the credit profile of both parties, possibly making it very difficult for the parties to have access to credit.

Advantages of "In Community of Property"

There are however some advantages by getting married in community of property.

• There is no need for the parties to enter into any special agreement before they get married.
• A party with strong financial means will automatically strengthen the other party’s financial means and provide adequate support.
• Parties married in community of property will enjoy equal rights when it comes to financial and legal obligations during the relationship.

Bailey Haynes Incorporated - Your Attorneys in Cape Town

For more information on the In Community of Property Marriage regime and antenuptial contracts, please contact our attorneys in Cape Town.