There are two types of marital regimes that exist under the South African Law, namely in-community of property and out of community of property. These two regimes apply to a Civil Marriage, where the couple goes to the court to sign; Civil Union, which is cohabitation; and Traditional Marriage formally known as Customary Marriage.
In community of property:
This is the default regime that applies to all marriages if the couple does not conclude an ante-nuptial contract (“ANC”). If you get married traditionally without signing any marriage contract, then the South African Law recognizes your marriage under the ‘in-community of property’ regime. This regime creates a joint estate. In simple terms, this means that the assets (e.g. savings, paid-off properties, etc) and liabilities (e.g. debts) of each of the parties before and during the marriage go into ‘one pot’. “What’s yours is ours and what’s mine is also ours”. It is important to note that in this regime the law requires the consent of the other spouse for certain transactions, such as buying or selling immovable property (e.g. a house or land) or entering into a credit agreement. Consent will not be required for other transactions, such as banking or selling movable assets (e.g. cars). A significant disadvantage of this regime is that you become responsible for all debt incurred by your spouse, even debt that was incurred before the marriage such as maintenance that is payable by your spouse from a previous relationship.
In the event of a divorce, the assets and liabilities of the joint estate will be divided equally between the couple. The couple can enter into a settlement agreement where they can agree as to how the joint estate will be split among them.
Out of community of property:
This regime applies where the couple concludes an antenuptial contract before they get married, the ‘ANC’ must be drafted by an attorney who is also a notary and it must be registered at the Deeds Office before the marriage is concluded. In terms of the contract, the community of property is excluded. This means that there is no joining of estates. Each spouse keeps his or her estate separate. However, the couple can choose to either include or exclude the accrual system from their ‘ANC’. If the couple does not specify in their antenuptial contract that they do not wish for the accrual system to apply to their marriage, then a marriage of ‘out of community of property’ is deemed to be with the accrual system.
It is important to note that if the Lobola negotiations and all other customary obligations are fulfilled by the couple and thus a customary marriage is concluded, the couple is deemed to be married in community of property. This is why it is important for the couple to enter into an ‘ANC’ before the customary proceedings take place if the couple wishes to be married out of community of property.
Out of community of property with accrual:
If a couple is married out of community of property with accrual each spouse keeps control of their own estate during the marriage, each spouse builds up their own estate and each is responsible for their own liabilities. In terms of the accrual, the net value of each of the spouse’s estate is declared at the beginning of the marriage. This commencement value is then recorded in the ‘ANC’. Everything that each spouse owned before the marriage remains theirs, but everything that the couple builds together during the marriage should be shared equally at the dissolution of the marriage.
At the dissolution of the marriage (divorce), the net increase in the value of either of the spouse’s estates during the marriage will be shared equally, with the exclusion of inheritances and donations. In terms of this regime, the couple is generally not liable for each other’s liabilities, all they share is their net assets. The accrual is calculated by deducting the net value of each spouse’s commencement value at the beginning of the marriage from the net value of each of the spouse’s estate at the end of the marriage. If for example, the husband’s estate has grown more than the wife’s estate, the wife has a right to claim up to 50% of the value by which the husband’s estate exceeds the growth of her estate.
Out of community of property without accrual:
Each of the spouse’s enters into the marriage with their own assets and liabilities (separate estate), they each manage their separate estates during the marriage and at dissolution, each party walks out with their respective estate. “What’s mine is mine, and what’s your is yours”.