before saying i do

What to keep in mind before saying “I DO” or “I DON’T”

South African matrimonial law covers 3 types of matrimonial systems being marriages:

  1. In community of property
  2. Out of community of property with accrual
  3. Out of community of property without accrual.

 

  1. IN COMMUNITY OF PROPERTY

Being married in community of property means that there is a joint estate between the parties to the marriage and the marriage dissolves in one of two ways being by death of either party or divorce.

When one divorces their spouse, and the marriage is in community of property, one must keep in mind that the joint estate is divided equally and therefore a spouse is entitled to half of the total estate. The contribution by either spouse to the joint estate means little so should either party be a stay at home spouse (wife or husband) they will still be entitled to half of the estate upon dissolution of the marriage.

A spouse is entitled to claim half of the other spouse’s pension fund and investments as well as to claim spousal maintenance from to sustain him/her for a certain period should a court consider that the spouse requesting maintenance is entitled thereto.

  1. OUT OF COMMUNITY OF PROPERTY WITH ACCRUAL

Being married out of community of property with accrual means that all assets which the parties to the marriage had prior to their marriage can either be included or excluded in the accrual.

This will be stated in the Anti-nuptial contract. Where there were no assets excluded or the commencement value of the estate is not specified in the contract it will be deemed that the value of the estates of the spouses at the commencement of the marriage was nil.

One should also note that assets which are inherited, non-patrimonial damages and donations are automatically excluded from the accrual unless the spouses agree otherwise in their anti-nuptial contract or in so far as the executor or donor may stipulate otherwise.

Upon divorce of the marriage each spouse will have a separate estate. The spouse with the smaller of the 2 estates will be entitled to half of the difference between the respective estates thereby balancing the financial position of both parties.  

  1. OUT OF COMMUNITY OF PROPERTY, ACCRUAL EXPRESSLY EXCLUDED

In this matrimonial regime the assets of the parties are completely separate during the marriage and at the dissolution of same by way of divorce or death. A party can dispose of their own assets without prior consent from the other party and there is no financial equality in respect of any contribution the spouses make in regard to day-to-day expenses for the joint household in the absence of an agreement in terms of section 23(4) of the Matrimonial Property Act.

Therefore if spouse 1 has built his/her estate substantially (financially) throughout the subsistence of the marriage and spouse 2’s income was only used for consumable household necessities then the spouse 2 has no claim to a share of spouse 1’s estate unless the spouses are married before 1 November 1984.

This marital system is recommended for parties who are coming into a marriage together and have built substantial estates or incomes and are entering into their second and further marriages.

These are marital systems that one should be aware of before saying “I DO” or “I DON’T” and always remember that love is blind but marriage is an eye-opener!

  • Contributed by Reitumetse Mokoka of Tuckers Inc