Family Law

Marital Regimes in South Africa

In this article we will be discussing the consequences of the different marital regimes and what it means to have an ante-nuptial contract.

Marriage in South Africa is the union of two persons, with inability to validly marry another person during such time. It creates certain invariable consequences (i.e. cannot be changed), such as:

  • Both spouses attain the status of a major;
  • A right of intestate succession is created between the spouses; and
  • A spouse’s capacity to act is restricted if the spouses are married in community of property.

However, there are also variable consequences of marriage and these include the arrangements spouses are entitled to make insofar as their property is concerned. In order to do so, the spouses need to enter into an ante-nuptial contract (“ANC”).

These are the 3 types of marital regimes in South Africa:

1. In Community of Property

This is the automatic martial regime in South Africa if no ANC is concluded.

The following are the consequences:

  • All debts incurred and all assets acquired before marriage will become part of the joint estate after the marriage, and both parties will be entitled and/or liable in such instances;
  • The written consent of the other spouse is required in certain instances (i.e. the sale of immovable property); and
  • At the end of the marriage, the joint estate is divided into two halves, one half belonging to each spouse.

2. Out of Community of Property (Excluding the Accrual)

An ANC is required to be concluded before the marriage and in the ANC, the accrual system is excluded.

The following are the consequences:

  • The spouses each have their own estates; and
  • Each spouse controls their own estate.

3. Out of Community of Property Including the Accruel.

This the preferred marital regime. An ANC is concluded and the accrual system is included.

The following are the consequences:

  • Throughout the existence of the marriage the parties have two separate estates and they don’t share in profits and losses;
  • Spouses share the assets they acquire from the start of the marriage but the sharing of these assets only takes place once the marriage ends;
  • In the ANC, a spouse may declare a commencement value, which consists of all or some of the assets that they bring into the marriage. If a declaration is not made or if the liabilities of the spouse exceed their assets, their commencement value will be deemed to be nil;
  • Damages for pain and suffering, emotional shock, disfigurement, loss of amenities of life and shortened life expectancy, as well as inheritances and donations are automatically excluded from the marriage;
  • When the marriage is dissolved the parties share in the assets acquired during the marriage i.e. the Accrual*.
    The accrual* is calculated by subtracting the commencement value (value of estate when the parties married) from the dissolution value (value of estate at divorce).

The commencement value is adjusted by the consumer price index at the end of the marriage for purposes of calculating the accrual.

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