In terms of the Matrimonial Property Act 88 of 1984 there are 3 matrimonial property systems available in South Africa:
- Marriage in Community of Property
- Marriage out of Community of Property without the Accrual System
- Marriage in Community of Property with inclusion of the Accrual System
Should a couple decide to divorce, the relevant matrimonial property system will significantly influence the claims each party may have. It is very important for couples to understand the implication of their chosen matrimonial property system (even before they say “I do“).
Matrimonial Property Systems – Alternative Names
Please take note that matrimonial property systems are also sometimes referred to as:
- Marital property systems
- Matrimonial property regimes
- Marriage property systems
What is the meaning of a marriage “in community of property”?
It simply means that you and your spouse’s assets and liabilities (debts) automatically merged into one joint estate when you got married. You and your spouse are now the co-owners of the joint estate. In plain language: you share all your assets and all your debts. You share everything.
This is the default matrimonial property system in South Africa, meaning if you did not enter into an Antenuptial contract with your spouse you will automatically be married in community of property.
What is the meaning of a marriage “out community of property without the accrual system”?
This means that the spouses keep their own estates (property and debts) acquired prior to and during the marriage separately. Each spouse is separately liable to pay his/her creditors. In plain language: “What’s mine is mine. What’s yours is yours.”
An antenuptial contract (before the marriage is entered into) is required in this regard.
What is the meaning of a marriage “out community of property with the accrual system”?
The Parties’ estates (assets & liabilities) remain separate however, out of community of property with the Accrual is a matrimonial property system where the difference in the growth between the parties’ respective estates (during the marriage) are shared equally at the end of the marriage, either by death or divorce. The accrual claim itself is a deferred claim that the party with the smaller estate can only make against the party with the bigger estate at the end of the marriage.
Some assets are automatically excluded from the operation of the accrual (in terms of the Matrimonial Property Act) and some assets are excluded by agreement between the parties in the Antenuptial contract. Each spouse is separately liable to pay his/her creditors.
An antenuptial contract (before the marriage is entered into) is also required in this regard.
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