Why Marrying In Community Of Property Is No Longer The First Option In South Africa

Getting married is a decision that is not taken lightly. However, the ever-growing question remains: how should each party get married? In recent years there has been a decline in couples deciding to get married in community of property. Most of these couples rather opt for a marriage out of community of property, either with the exclusion or inclusion of the accrual. The big question to be answered is why couples are no longer getting married in community of property.

For this question to be answered, we would have to look at the advantages and disadvantages of getting married in community of property.

What it means to get married in community of property

When you get married in community of property, all the assets (whether it was your separate asset before the marriage or not) forms part of the joint estate and the couple will share everything equally.

If one party wishes to get divorced, then all the assets in the joint estate would have to be divided between the parties equally.

Disadvantages of getting married in community of property

Let us start off with the 2 biggest disadvantages of getting married in community of property.

1. Assets and Liabilities

When a party enters a marriage, all the assets and liabilities of that party will form part of the joint estate. The downside of this is that if a party has a lot of liabilities it will in turn, become the liabilities of the other party in the marriage.

This will make it easy for creditors to lay claim on the assets of the couple. A good example would be, if one party purchased and paid off a vehicle prior to the marriage, the creditor will be able to lay claim on such asset to settle any debts owing.

2. Consent

The Matrimonial Property Act stipulates that parties married in community of property cannot perform certain juristic acts unless that party has obtained the necessary consent from the other spouse.

This includes but is not limited to:

1. Alienating, mortgaging, or burdening with a servitude any immovable property forming part of the joint estate.
2. Entering a contract for the alienation, mortgaging, burdening with a servitude any other real right in immovable property forming part of the joint estate.
3. Alienating, ceding, or pledging any shares and stocks.
4. Entering into a credit agreement as a consumer.

 

Advantages of getting married in community of property

1. There are no real advantages to getting married in community of property, except for personal expectation when entering a marriage. The only advantage, however not only applicable in marriages in community of property but also in marriages out of community of property with the inclusion of the accrual system is that where a party is entitled to any form of compensation due to a claim for delictual damages will be excluded.

Conclusion

Parties should strongly consider whether getting married in community of property is the best option and should weigh their needs against what is practically the best option. It is always advisable to seek legal advice and explore all your options before making a decision in this regard. Remember, your matrimonial property regime has a lot of weight on how things are governed in your marriage.