Written by Cobus Kotze, paralegal, reviewed and edited by Lizel Oosthuizen, Sole Director and Owner of Lombard & Partners Incorporated.
There are mainly three types of matrimonial property regimes in South African law. In this article, we will guide you to gain a better understanding of these three concepts, and help you choose which of the above three is best for you and your partner. The three types are:
Marriage in community of property
This is the default matrimonial property regime in South Africa. If you and your partner do not enter an antenuptial contract before your actual marriage, you will automatically fall under this property regime. An antenuptial contract is a legal document signed between you and your partner before the marriage, which regulates the financial relationship between the two of you.
Marriage in community of property is a much more traditional property regime and is considered to be riskier for both parties compared to the other two property regimes. When you marry in community of property, a joint estate will be formed from you and your partner’s separate estates. Your estate consists of all your assets, as well as all your liabilities. In the event that the marriage dissolves, the joint estate will be divided in half or on a fifty-fifty basis, just as it was formed.
To perform any legal action on the estate will always require the consent of the other spouse.
Marriage out of community of property with and without accrual
Marriage out of community of property with and without accrual both have a couple of things in common. Marriage out of community of property can be stipulated in the antenuptial contract entered into before the marriage. Both you and your partner will retain your separate estates after you have married, and therefore no joint estate will be created.
In the event that the marriage dissolves, there will be no division of any estate, because no joint estate exists in the first place. Marriage out of community of property with the accrual system means that when the marriage dissolves, both you and your partner will share in the growth of your estates that accumulated during the existence of the marriage. The meaning of the word accrual in this context can be seen as growth or an increase in the size of one’s estate. This is much different than in community of property, where the estate is split exactly in half. The accrual system works as follows:
- At the dissolution of a marriage (through death or divorce)
- The partner whose estate shows no accrual or a smaller accrual than the other partner, can claim against the other partner
- This claim is equal to half of the difference between the accrual of each of the estates in the marriage.
This can be rather confusing and will be understood better through an example:
- Partner (hereafter ‘A’) and Partner (hereafter ‘B’) married out of community of property with the accrual system applied.
- (A) and (B) decided to file for a divorce.
- While they were married, (A)’s estate grew by R200 000 and (B)’s estate only grew by R40 000.
- (A)’s estate is R160 000 more than (B)’s estate.
- (B) has the smaller estate, and therefore has a claim on (A)’s estate.
- (B) can claim half of the R160 000 difference between the two estates, which equals to the amount of R80 000
- (A)’s new estate value is R160 000
- (B)’s new estate value is R160 000
There are however certain assets that should be excluded from the accrual calculation. These assets include for instance:
- Inheritances
- Legacies
- Donations
- Assets specifically excluded in the antenuptial contract drafted between you and your partner
- Damages received (except damages due to patrimonial loss)
- Donations made between spouses (except donations made in expectation of death)
All the above, which is referred to as the accrual system, can be disregarded when you and your partner agree in the antenuptial contract to not make use of the accrual system. In this case, when the marriage dissolves, each party will leave with their own separate estates intact.
No consent is required from your partner to take legal action on your estate when married out of community of property.
How to change your Matrimonial Property Regime
Section 21 of the Matrimonial Property Act, Act 88 of 1984, states that spouses/unions may apply to the High Court to change their Matrimonial Property Regime. The Court would have to be convinced that:
- There exist good reasons for the proposed change.
- That sufficient notice has been given to all the relevant creditors.
- No person will be prejudiced by the proposed change.