The matrimonial property regime that you choose at the outset of your marriage has far-reaching implications in respect of your assets, debt, insolvency, divorce and death. Before choosing a marital regime, it is advisable to give careful thought to your particular circumstances to ensure that you choose one that is fair, equitable and which will not compromise you financially later on in life.
In South Africa, you can either choose to be married (a) in community of property or (b) out of community or property. If marrying out of community of property, you have the choice to either include or exclude the accrual system. But what does this all mean? Here’s how your choice of marriage regime can impact you.
If you are entering into a marriage out of community of property, you will need to draw up and sign an ante-nuptial contract (ANC) which is effectively an agreement that sets out the financial consequences of a marriage. An ANC, which must be entered into before the marriage, can be tailor-made by the couple to suit their specific needs. They are free to include any provisions in their ANC provided they are not in contravention of any laws or good morals. If the couple does not wish the accrual system to apply to their marriage, they must expressly exclude the system in their ANC. If they do not expressly exclude this system, the accrual system will automatically apply to their marriage. If a couple intends to be married in community of property, no contract needs to be entered into prior to the marriage.
Costs & procedure
An ante-nuptial contract must be executed by a notary public, who is an admitted attorney authorised by the high court to witness signatures, attest contracts and authenticate the validity of certain documents, such as an ANC. Once the ANC has been signed by all parties, the notary public will forward it to the deeds office where it will be registered. Depending on the complexity of the contract, an ANC can cost anywhere from R2 000 upwards and the cost will generally include the registration fee. There are no upfront costs or procedures that need to be followed when choosing to marry in community of property. As a word of warning, do not let the upfront costs of entering into an ANC cause you to default to an in community of property regime.
If you are married in community of property, all assets belonging to you and your partner before the marriage plus all assets that you accumulate during your marriage will fall into the joint estate, unless the assets were inherited and were specifically excluded from a community of property estate in the deceased’s will. Once you are married, you will each have equal, undivided shares of a communal estate.
In a marriage out of community of property excluding the accrual, each spouse keeps a separate estate over which they have absolute control and independence. Each spouse remains the sole owner of any assets that accrued before the marriage as well as those that accrue during the marriage.
Where a couple is married out of community of property with the accrual system, each spouse still keeps a separate estate over which they have absolute control and independence. Only once the marriage comes to an end, for example on death of one of the spouses or divorce, a claim comes into existence to a share of the accrual. The accrual is effectively the net increase in the value of the spouses’ estates since the date of marriage. In other words, the spouses share equally in the increase in value of both their estates while the marriage is in existence. Bear in mind that a spouse’s right to her share of the accrual can only be exercised when the marriage is dissolved.
Because marriage in community of property involves the management of a joint estate, our law makes provision for circumstances where spousal consent is needed for certain transactions. Marriages out of community of property have no need for spousal consent as the estates of each spouse remain separate. Typically, in a community of property marriage, written spousal consent would be required when selling a joint asset (such as jewellery, gold coins or an art collection), withdrawing money from the other spouse’s account, selling shares or cashing in investments. Written consent as well as two witnesses would be required for larger transactions such as the sale or purchase of immoveable property or entering into a credit agreement. Day-to-day transactions such as depositing money, making charitable donations and other general transactions do not require spousal consent.
Debt and insolvency
An important factor that should be considered before choosing your property regime is the matter of debt, specifically when it comes to marriages in community of property. In a community of property marriage, all debt incurred by the spouses before and during the marriage forms part of the common estate, and this debt can include maintenance obligations to a previous spouse or to children from a previous relationship. Being jointly liable for each other’s debts can be problematic, especially in the case of insolvency. If one spouse becomes insolvent, the joint estate can effectively be declared insolvent and all the assets in the estate could be sequestrated.
In a marriage out of community of property without the accrual, each spouse is responsible for their own debt and the other spouse cannot be held responsible. Therefore, if a husband files for insolvency, as a general rule the assets of his wife cannot be touched by creditors. These assets include assets that the wife owned before the marriage, assets that she is entitled to in terms of the ANC, and assets that she acquired during the marriage from her own income.
Where a couple is married with the accrual system, only the debt that they incurred from the commencement of their marriage is included in the accrual calculation. Any debt that was incurred prior to their marriage is excluded from the accrual calculation. The right to share in the accrual can only be exercised when the marriage is dissolved which means that the accrual cannot be attached by creditors while the marriage is in existence.
When spouses in community of property divorce, the joint estate will effectively be divided equally between the two parties. An exception to this is where one spouse claims forfeiture of patrimonial benefits on the grounds that the other spouse has benefited unduly from the community of property. Once the decree of divorce has been issued, the spouses are required to divide their assets accordingly. Where a couple is married out of community of property without the accrual, each party retains their own assets and liabilities and no redistribution of assets occurs. In the case of a divorce where the accrual system applies, the accrual must be calculated by taking into account the commencement value of each estate and the extent to which each estate has grown during the marriage. Effectively, everything that each spouse owned before the marriage remains theirs, and the value of everything that accrued during their marriage is shared equally.
Retirement fund assets
The matrimonial property regime will also have an impact on how a member’s retirement fund benefits will be dealt with in the event of divorce. Where a couple is married in community of property, the non-member spouse has a claim up to 50% of the retirement fund assets as at the date of their divorce. Where the couple is married out of community of property without the accrual, each party retains their own separate estate and there is no redistribution of retirement fund benefits, although the member spouse is free to share the benefit as part of the settlement agreement. In respect of marriages with the accrual system, the member spouse’s retirement fund value is used to calculate the value of the accrual and a claim can be laid to a portion of the retirement fund.
Where a party to an in community of property marriage dies, the joint estate is dissolved simply because a joint estate cannot have one owner. The surviving spouse effectively has a claim for 50% of the joint estate, while the other half of the estate will be distributed to the heirs and legatees of the deceased spouse.
Where a spouse who is married out of community of property without the accrual system dies, he is able to bequeath and distribute his estate as he sees fit. His death will have no impact on the estate of the surviving spouse. However, if the deceased spouse has not made sufficient provision for his surviving spouse, she may have a claim for financial support in terms of the Maintenance of Surviving Spouses Act.
Where a person is married out of community of property with the accrual, it is important to note that the accrual calculation is done at the death of the spouse. If the accrual of the surviving spouse’s estate is less than that of the deceased’s estate, she can lodge a claim for her share of the accrual against the deceased estate.