Upon explaining to these couples the purpose of our presence at the wedding show, the scales fell from their eyes and they comprehended the significance of having an Antenuptial Contract drafted – a document which would permanently govern their marriage, unlike the flowers, food and drinks which would aid in making their wedding one to remember, but would also quickly wilt, be consumed or thrown away.
In South African law, there are various marital regimes which may govern one’s marriage. The three matrimonial systems which intending spouses may choose between are:
- In Community of Property
- Out of Community of Property with the Accrual System
- Out of Community of Property without the Accrual System
For the sake of conciseness, I shall only be addressing the first of the aforementioned matrimonial systems in this article. Please read next month’s newsletter to become educated on Antenuptial Contracts and the consequences of the inclusion and exclusion of the accrual system.
IN COMMUNITY OF PROPERTY
A marriage automatically creates community of property and profit and loss in the absence of an Antenuptial Contract. Every marriage is presumed to be in community of property unless the contrary is proven i.e. the existence of an Antenuptial Contract. In such a marriage, all assets of both spouses are merged into a joint estate in which both spouses hold equal, undivided shares. Both parties have equal powers in the administration of the joint estate and are also accountable to the other spouse for any transactions with the estate’s assets.
There are, however, certain assets which are excluded from the joint estate:
- Debts or bequests by third parties with a specific exclusion clause;
- Damages sustained by one of the spouses for non-patrimonial loss i.e. pain and suffering;
- Certain insurance policies may be excluded from the community;
- Betrothal and wedding gifts.
A significant disadvantage of this marital regime is that should one of the parties be sequestrated, both spouses will automatically be declared insolvent. Another disadvantage, which has proven to be a limitation, is that certain transactions require both spouses’ consent in writing i.e. the purchasing and selling of property.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE).