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MARRIAGE & DIVORCE

Which Matrimonial Property System to/should govern your marriage?

  1. Marriage in Community of Property

Marriage in community of property means that parties married in this regard all the liabilities, debts and assets incurred before the marriage will form part of the joint estate. All liabilities, debts and assets incurred after the conclusion of the marriage will form part of the marriage. Upon termination of the marriage, the joint estate will be divided equally to the parties. That is liabilities, debts and assets acquired on and/or before and/or during the subsistence of the marriage will then be shared equally to the parties.

This system is considered to be the cheapest. However, it has its disadvantages because the spouse with greater assets and without debts will have to pay the other party’s debts or declared insolvent if the other party is insolvent, provided there is one shared estate or jointly liable for each other’s debts.

  1. Marriage Out of Community of Property with Accrual System

The accrual system is applicable to all marriages out of community of property unless excluded by an antenuptial contract which specifies otherwise. Marriage out of community of property with accrual means that the parties entered into a marriage retain their property and have similar rights and control over their own estate as it was before the marriage. The accrual means the increase of one or both spouse’s estate increase in value from the date of the marriage.

The accrual only comes into effect upon death or divorce. Upon divorce, the growth of both parties estate is taken into account to be compared in order to determine which one is greater than the other or estate with the least growth. The purpose of the aforesaid is to share the growth accrued during the subsistence of the marriage equally between the parties. This means that the parties with the least development or no growth of his estate, possess a right to claim an amount equal. The spouse whose estate has encountered no development or the least development is qualified to claim for an amount equal to half of the difference between the development of both respective spouse’s estate. However, there are properties which are excluded when determining the accrual, not all assets are taken into account.

  1. Marriage Out of Community of Property without Accrual.

In terms of this matrimonial property system, parties keep the control and rights over their estate before and after their marriage, everything remains the same before and/or during and after the marriage. Parties have no right to claim accrual from the other party’s estate. In this regard, it is important that the parties enter into an antenuptial contract to govern their marriage. This indicates that the accrual system is not applicable.

Parties in this regard may reach an agreement in any other contract, such as a will and etc, that he or she will be entitled to some or certain part of the estate or certain property or a sum of money.

It is advisable that you consult with a family lawyer, notary or legal expert if you want to marry or get married and/or if you want to change your matrimonial property system.

Book your free consultation with our office regarding divorce.

TSHENOLO MOTSEBE is a candidate attorney at Adrie Wahl Attorneys.