When a Pretoria couple wed in community of property, they did not foresee the financial consequences that could develop when a divorce was imminent.
Now the former husband - who refused to share his pension fund, two properties and furniture with his ex-wife after she cheated, - has been told that because he was married in community of property, he has no option but to do just this.
Marriage in South Africa has a unique legal structure, and couples have the option to enter into a community of property marriage or to choose a different type of legal arrangement.
The community of property one which the Pretoria couple entered into, meant that all of their assets and liabilities would be combined and equally shared between them.
One of the main advantages of a community of property marriage is that it simplifies the financial aspects of the relationship.
All assets and debts are shared equally, which can make it easier for couples to manage their finances and make decisions about major purchases. It can also provide a sense of security and partnership, as both spouses are fully invested in the success of the marriage.
However, there are also potential drawbacks to a community of property marriage. If one spouse incurs significant debt or makes poor financial decisions, it can have an impact on the other spouse's financial situation.
Additionally, in the event of a divorce, all assets and debts are divided equally, which may not be fair if one spouse has contributed significantly more to the acquisition of those assets.
Despite these considerations, many couples enter these marriages.
Couples considering a community of property marriage should carefully weigh the pros and cons and seek legal advice before making a decision. It is important to fully understand the legal implications of this type of marriage and to ensure that it is the right choice for both parties.
There are two other legal systems that regulate marriage and are part of South Africa’s unique system and these are known as the "antenuptial contract."
This legal agreement, which must be entered into before a marriage takes place, determines the financial consequences of the marriage for each spouse.
There are two main types of antenuptial contracts in South Africa: those with the accrual system and those without the accrual system.
The Pretoria husband could have avoided paying his ex wife out, had he chosen an ante nuptial contract.
According to divorcelaw.co.za, a marriage out of community of property is achieved by drawing up an antenuptial contract (ANC).
The ANC will be the most important contract that a married couple will sign in their lifetime, the divorce law website says.
Entered into before marriage, the purpose of the contract is to change some or all of the automatic financial consequences of marriage.
The ANC allows the husband and wife to tailor-make their very own matrimonial property regime.
They can include any provisions they like in the contract, as long as the provisions are not against the law, good morals or the nature of marriage.
ANCs are however problematic to change as they dictate the financial and proprietary consequences of the couple’s future and can affect the rights of the couple’s creditors.
Couples may enter into one of two types of ANC:
– an ANC that excludes community of property, community of profit and loss, and the accrual system; or
– an ANC that excludes community of property and community of profit and loss, but includes the accrual system.
The ‘accrual’ is the extent to which the husband and wife have become richer by the end of the marriage; in other words, the amount by which the spouses’ joint wealth has increased over the period of the marriage.
When married according to the accrual system, each spouse acquires a certain right to the other’s property on divorce. Neither system is superior to the other.
The marital property regime chosen (i.e. with or without accrual) must suit the couple’s relationship dynamic and specific needs.
Note that the ANC is a normal contract, so all the rules as to fraud, duress and mistake apply.
Generally, these assets are excluded when calculating the accrual:
– Any asset that is excluded in terms of the antenuptial contract, or any asset which the spouse acquired by virtue of their possession (or former possession) of that asset;
– Donations between spouses are not included in the accrual;
– Any amount that accrued to a spouse by way of damages (other than patrimonial damages);
– An inheritance, legacy or donation which accrues to a spouse during the subsistence of the marriage, or any asset which was acquired by virtue of their possession or former possession of the inheritance, legacy or donation, except where the couple agreed otherwise in terms of their antenuptial contract.
There are pros and cons to both types of antenuptial contracts.
Advantages of marriage out of community of property without the accrual
Each spouse keeps his/her own assets and is free to deal with his/her own estate as he/she likes.
Spouses are generally not liable for each other’s debts. Thus, if one spouse becomes insolvent, creditors cannot touch the assets of the other spouse.
The financially stronger spouse does not have to share his/her estate with the weaker spouse. This is subject to judicial discretion and forfeiture of benefits.
Disadvantages of marriage out of community of property without the accrual
The economically weaker spouse, traditionally the woman, does not get to share in the estate of the stronger spouse, even though she may have indirectly contributed to the estate by running the household and looking after the children.
This is subject to judicial discretion and forfeiture of benefits.
An ANC has to be entered into in order to marry out of community of property. This costs money, and the parties must pay the fees of a notary and costs of registration.
Ultimately, the choice of an antenuptial contract will depend on the individual circumstances of each couple and the financial protection they wish to have in the event of a divorce.
It is important for couples to carefully consider their options and seek legal advice before entering into an antenuptial contract in South Africa.
* This article was in part generated by AI.
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