Marital systems in South Africa - the different types of marriages in South Africa and the implications of such

Many people want to get married and many people have very specific ideas of how they want their marriage to be. This article is not an article that is going to be discussing how to get married, when to get married, or where to get married. The purpose of this article is to give an idea of the different marital types or marital regimes that one can enter into when wanting to get married.

When getting married, a couple can either choose to get married in community of property, or out of community of property. Out of community of property is further broken down into either out of community of property with the accrual system or without the accrual system. The question that then arises is what are these different types of marriages and what do they mean?

Let's break the down and make it understandable. When married in community of property, this means that whatever you and your spouse own, are shared in equal parts. This means that should you get divorced, everything owned by the married couple is split 50/50. The house, all assets, and property is split, and half is given to the one party and the other half is given to the other party. This also means that all debts, obligations, and liabilities are also shared 50/50. In other words, if a spouse is indebted to a creditor, that creditor can either claim the money owed from the spouse who is in debt, as well as the spouse who is not in debt. It also means that if one spouse is insolvent, the entire estate is insolvent, which means that the other spouse would be insolvent as well.

An advantage of being married in community of property is that even if a spouse doesn't work but helps and contributes towards the other spouse and their estate, they will not walk away with nothing should the marriage end. They are protected and will get half of the estate, so that they are not left impecunious. This is very important and is definitely something that should be considered. This marital system or marital regime can and does work for many people. It just depends on each person's and each couple’s situation and how people want their marriage to operate.

In community of property is the default marital system in South Africa. This means that if you do not specifically and expressly exclude in community of property when getting married, this will be the default system that will be applied to you and your spouse’s marriage.

Now, it is time to discuss out of community of property. As stated above, you can either get married out of community of property with the accrual system or out of community of property without the accrual system.

When getting married out of community of property without the accrual system, this basically means that what is yours is yours, and what is mine is mine. The couple share nothing and retain their own property. For example, if one spouse has a house or buys a house and the couple then live together in the house as a married couple, should the marriage come to an end, the spouse who owns the house, gets the house. The other spouse does not have any claim for the house. Another example relates to motor vehicles. Should a couple get married out of community of property without the accrual, each spouse retains their own motor vehicle.

An advantage of this marital system relates to one spouse owning a business or having shares in a business. Should the business not succeed, and should the business become liquidated, creditors have no claim against the other spouse who is not part of the business. Creditors can only go after the spouse who owes them money, which means that if one spouse is insolvent or their business is liquidated, as stated above, creditors can only go after that specific spouse. The other spouse is completely protected from this.

When it comes to out of community of property with the accrual, this situation is slightly different. When married, this marital system operates in exactly the same way as a marital system without the accrual. While married, the marriage operates according to the rules of what is yours is yours, what is mine is mine. The difference with this system, is when the marriage comes to an end, what will happen, is that at the end of the marriage, each partner's estates will be calculated. The person's estate who has grown the most during the marriage, that portion accrued during the marriage, will be split into two parts with one part going to one spouse and the other part going to the other spouse.

In other words, whatever has been accrued during the marriage, whatever the partners or even one partner has acquired while being married, that will form parts of the accrual system, and that accrued portion of the marriage, whoever has accrued more during the marriage, that portion will be split between the two partners in equal shares. An advantage of this marital system is self-explanatory. It just means that when a marriage ends, should a marriage end, everything accrued during the marriage, or everything that one spouse has helped or contributed to the other spouse accruing during the marriage, that is split in equal shares between each spouse and no spouse is left impecunious.

Out of community of property with the accrual is the default marital system, if in community of property has been expressly and explicitly excluded. You will have to expressly and explicitly exclude out of community of property with the accrual if you do not wish to have the accrual system applied to your marriage. If you do not exclude out of community of property with the accrual, that will be the system that will be applied to the marriage.

I do hope that this article has been helpful and has cleared up some confusion and misunderstanding when it comes to the different marital systems and marital regimes in South Africa. For more information, or should you wish to discuss anything further in this regard, give JFY attorneys a call. With our economical rates, no task is too small.