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Matrimonial property regimes in SA

February is commonly referred to as the month of love as sales of roses, chocolates and engagement rings skyrocket in anticipation of the most romantic day of the year. However, before dropping thousands of Rands on the classiest diamond ring around, it is important to consider the Matrimonial property regime that will govern your marriage once it takes place.

There are 3 Matrimonial property regimes available to couples in South Africa:

  • Marriage in community of property
  • Marriage out of community of property with the exclusion of the accrual system
  • Marriage out of community of property with the application of the accrual system

MARRIAGE IN COMMUNITY OF PROPERTY

This is the default matrimonial property regime in south Africa. What this system entails is that the parties will no longer have separate estates and their respective estates will be joined together to form one joint estate. The parties will each have a 50/50 share in the assets as well as liabilities of the estate. Their ability to enter contracts on their own accord is also limited.

MARRIAGE OUT OF COMMUNITY OF PROPERTY WITHOUT ACCRUAL

Should a couple wish to have this matrimonial property system apply to their marriage, an Antenuptial contract must be entered into by the parties prior to their marriage. In this instance, the parties retain their separate estates and can freely enter into contracts without the need for consent from their spouse. On dissolution of the marriage, there will be no division of assets based on the matrimonial property regime as there is no joint estate.

MARRIAGE OUT OF COMMUNITY OF PROPERTY WITH ACCRUAL

This is the regime which is regarded as being the most fair regime as each party retains their individual estates, but the parties will share in the growth that accrued to their estates for the duration of the marriage. An antenuptial contract will have to be entered into by the parties which notes that the accrual system applies and discloses a commencement value of each of the estates. The commencement value can also be disclosed in a separate document. On dissolution of the marriage, The growth of the estate of each party will be calculated and the one with a smaller increase will have a claim equal to 50% of the difference between the larger and smaller estate.

The Antenuptial Contract referred to above must be drawn up and attested to by a Notary Public prior to the wedding date.

Contributor: Derone Sookraj
Designation: Associate
Department: Conveyancing
Email: Derone@pgpslaw.co.za