Types of Marriages in SA.

Описание: In South African law people can choose between two matrimonial property systems, a marriage IN COMMUNITY OF PROPERTY or OUT OF COMMUNITY OF PROPERTY
MARRIAGE IN COMMUNITY OF PROPERTY

If an Antenuptial Contract is not entered into, the marriage is automatically in community of property.

This means that all property of which the spouses are the owners at the date of marriage and which they acquire during their marriage, whether by way of remuneration, inheritance, gifts or otherwise, fall into the communal or joint estate. The joint estate is owned by the spouses in equal, undivided shares.

A marriage in community of property results in you sharing your assets as well as your liabilities & debt.

(b) Advantages:
no Antenuptial Contract required;
automatic half share in accrual (growth) of spouse’s estate;
credit-worthiness of each spouse is the same;
assets acquired prior to marriage forms part of joint estate, shared equally;
fair and equal sharing;

(c) Disadvantages

joint liability for liabilities and debt (insolvency risk);
spouses are unprotected against delictual liability incurred by spouse;
they cannot recover damages from each other on ground of delict/offence;
availability of funds can be a problem on death of spouse;
risky if your spouse is careless spender;
limited capacity to litigate;
consent of spouse required in certain transactions (limited capacity to act), for example when purchasing assets.

MARRIAGE OUT COMMUNITY OF PROPERTY

For a marriage to be out of community of property, the parties need to enter into an Antenuptial Contract prior to their marriage.

There are two types of marriages out of community of property:
out of community of property with exclusion of the accrual system and
out of community of property with inclusion of the accrual system.

MARRIAGE OUT COMMUNITY OF PROPERTY WITH EXCLUSION OF THE ACCRUAL SYSTEM

The Accrual system will be specifically excluded in the Antenuptial Contract.
This means that the parties will not share their assets prior to the marriage and will also not share in any of the assets accumulated during the course of the marriage. So what is yours and is yours... is yours.

Advantages :
on insolvency of one spouse : the solvent spouse retains their assets irrespective of spouse’s insolvency;
each spouse retains assets brought into marriage and acquired during marriage as exclusive property, no sharing
totally separate estates;
increase / decrease in estate only benefit the particular spouse.

Disdvantages :
unfair distribution of assets;
no sharing in growth of spouse’s estate;
each spouse retains own assets and own accrual;
spouse contributing emotionally / indirectly (not financially) normally prejudiced/disadvantaged

MARRIAGE OUT COMMUNITY OF PROPERTY WITH INCLUSION OF THE ACCRUAL SYSTEM
This means that spouses will not share the assets they accumulated prior to the marriage, but will share in the growth/accrual of their estates during the course of the marriage.

Advantages:
-spouses retain and control own estates;
capacity to dispose of assets limited, which protects you against spendthrift spouse.
accrual is determined first at death, before inheritances or donations;
equal sharing in accrual of estates during duration of marriage;
spouses are protected against spouse’s creditors;
accrual cannot be attached by creditors
free to contract with each other;

(c) Disadvantages:
an Antenuptial Contract needs to be executed;
right to claim accrual only at dissolution of marriage; (death, divorce)
no sharing of estates prior to marriage, only accrual to both estates during course of marriage;
cannot share in spouse’s credit-worthiness;
accrual calculation can be complicated;
NB: must keep detailed records.

This was alot of information. I hope it answered some of the questions you have.