03 Apr Your Marital Status & the Benefits Thereof
In South Africa, there are three primary civil marital regimes or matrimonial property systems recognized by law. In this article, we will briefly discuss each civil marital regime, the benefits thereof, as well as how to change your marital regime (in, sometimes, necessary instances).
The Different Matrimonial Regimes
- In community of property
- Out of community of property (without accrual)
- Out of community of property (with accrual)
In community of property:
This is the default marital regime in South Africa, where all assets and liabilities of both spouses are shared equally, regardless of who acquired them before or during the marriage. “By default” means that you get married without signing an antenuptial contract, prior to date of marriage.
The benefits of being married in community of property:
- Simplifies the administration of the couple’s assets, as everything is shared equally.
- Both spouses have equal rights and responsibilities in the marriage.
- Provides financial protection for the spouse with fewer assets, as they have equal access to the shared assets.
Out of community of property without accrual:
In this regime, each spouse retains ownership and control of their own assets, and there is no sharing of assets or liabilities during the marriage.
The benefits of being married out of community of property without accrual:
- Each spouse has complete control over their own assets.
- There is no sharing of liabilities, so each spouse is only responsible for their own debts.
- Simplifies estate planning, as each spouse’s estate is separate.
Out of community of property with accrual:
In this regime, each spouse retains ownership and control of their own assets, but any increase in the value of those assets during the marriage is shared equally between the spouses upon dissolution of the marriage.
The benefits of being married out of community of property with accrual:
- Each spouse has complete control over their own assets.
- Provides protection for the financially weaker spouse, at the dissolution of the marriage, as they are entitled to a share of the increase in the value of the other spouse’s assets during the marriage.
- Promotes financial transparency, as full financial disclosure is required to determine the value of the accrual at the dissolution of the marriage.
Changing Your Marital Status from Being Married in Community of Property
What happens if couples get married IN community of property, either by being unaware that this is the default marital regime, or by not signing their Antenuptial Contract, in error, before their marriage?
When couples get married in community of property, but they intended to get married out of community of property, the couple may only apply to court to change the matrimonial property system. Section 21 of the Matrimonial Property Act allows spouses to apply to court to change their matrimonial property system. However, it is important to note that the court must be satisfied that there are sound reasons for the proposed change and that there will be no prejudice to creditors. Should the court be satisfied with the application, a postnuptial contract will then be registered in terms of the granted court order.
Changing the marital regime from “out of community of property” (with or without accrual) to “in community of property”, may also only be done by way of a court application and final court order allowing the change of marital regimes.
It is important to note that the matrimonial property system you choose has significant legal and financial implications, and it is advisable to seek legal advice from a qualified attorney before finalising your decision.
Should you have any questions, please contact Yolandi Hortnagl yolandih@louwcoetzee.co.za or 021 976 3180 for assistance.