Marriage in community of property: the legal consequences


 

In South Africa you are automatically married in community of property when you get married without registering an ante nuptial contract. Now you might think that it is not so bad to be married in community of property. You love each other and you want to share everything you have with the other person.  But do you really understand what it means to be married in community of property?

Let me explain the legal implications:

1. You have one joint estate of which each spouse have a 50% undivided share:

This means that all your assets, also those you accumulated before the marriage, forms part of your joint estate (There are some exceptions, for example when a will stipulates that an inheritance does not form part of the estate). Also both your liabilities, incurred prior to and during the marriage, are considered liabilities of the joint estate. So, if one spouse comes into the marriage with a lot of debt, his/her debt will then form part of the joint estate. The other spouse will then be jointly responsible for that debt.  This include any debt, it can be maintenance payable to an ex-spouse from a previous marriage and even maintenance payable to extramarital children. Each spouse also has the capacity to bind the joint estate through their actions. For example, if a spouse has his/her own business and applies for an overdraft, and the business fails to pay the overdraft, a claim can be made against the joint estate.

2. For certain actions you will need permission from your spouse:

As you do not have your own estate, you will need to get your spouse’s permission before entering into most transactions. In the case of purchasing or selling immovable property or entering into any credit agreement, you will have to obtain the written consent of your spouse.

3. When one spouse becomes insolvent, both spouses become insolvent:

This one speaks for itself. During insolvency the joint estate, including all assets specifically excluded from such an estate, are sequestrated as a community in property means that both persons are co-responsible for all liabilities.

4. When one spouse dies, the entire joint estate must be administrated by the executor:

The executor will by law administer the entire estate and not only one half of the deceased’s share. Therefore executor and Master’s fees are calculated on the gross value of the joint estate. Furthermore, all liabilities in the joint estate have to be discharged, unless the surviving spouse, if he or she is the only heir, is able to take them over.

Conclusion

In essence there are just too many disadvantages and risks to still get married in community of property. Especially in today’s economic climate with more and more people owning or starting their own businesses.

Please click here to read how you can get an Antenuptial Agreement for a marriage out of community of property.