Getting married and antenuptial contracts

Thinking of the legal consequences of your marriage when planning your wedding might be the last thing on most people’s mind however, it has such an important impact on your marriage and your future as husband and wife. It is important to understand the different marriage property regimes to determine which one best suits your future life together. South African marriage property regimes are regulated by the Matrimonial Property Act 88 of 1984. There are two marriage property regimes in terms of this Act. A marriage can either be:

1. In Community of Property; or 

2. Out of Community of Property.

If your choice is to be married Out of Community of Property you will have to sign an Antenuptial Contract and attest to it in front of a Notary Public. 

In Community of Property

In terms of the laws of our country if two people get married without an Antenuptial Contract then such marriage is deemed to be In Community of Property. The legal affect of this property regime is that you share 50% of all of your spouse’s assets and liabilities. This means that your spouse’s creditors can come knocking on your door to pay his/her debt. Your contractual capacity is further limited in this property regime as you often require the written consent of your spouse before you can enter into an agreement with a third party. 

Out of Community of Property

People who choose to get married Out of Community of Property must enter into an Antenuptial Contract before concluding their marriage. There are two variations for people choosing to be married Out of Community of Property:

1. Out of Community of Property without profit and loss and without accrual; or

2. Out of Community of Property with accrual and without profit and loss; 

Out of Community of Property without profit and loss and without accrual

In this marriage property regime there is no division of assets or liabilities. Each party retains their separate estates and there is no sharing of assets obtained during the subsistence of the marriage. Each party remains responsible for their own liabilities.

Out of Community of Property with accrual and without profit and loss

This is the most commonly used marriage regime. Each party retains what they had prior to entering into the marriage and shares in what is acquired during the subsistence of the marriage. However each party remains responsible for their own liabilities and the one spouse cannot be held liable for the other spouse’s debts.

For more information on the different marriage property regimes give us a call and arrange a consultation with our Notary Public.