The Legal Consequences of a Marriage in Community of Property

Let’s have a closer look at some of the most important legal consequences of a marriage in community of property; focussing on the provisions of chapter three of the matrimonial property act, act 88 of 1984.

When does a marriage in community of property come into existence?

In terms of the Matrimonial property act parties who do not wish to be married in community of property may enter into an antenuptial contract, commonly referred to as an ANC. If you and your fiancée do not enter into an antenuptual contract prior; you will be married in community of property. After the conclusion of the antenuptual contract it must be registered in the deeds office in terms of the deeds registries act.

THE NATURE AND CONSEQUENCES OF A MARRIAGE IN COMMUNITY OF PROPERTY.

1. A JOINT ESTATE COMES INTO EXISTENCE

A marriage in community of property has the consequence that spouses obtain an undivided half share and become indivisible joint owners of all the assets and liabilities that belong to both of them on the date when the marriage is concluded. This includes all assets and liabilities which they obtain during the existence of the marriage. On the date an amalgamation of the husband and wife’s separate estates takes place by operation of the law. Put simply: only one estate exists once the parties are married. The joint estate will continue to exist for as long as the marriage exists; ceasing to exist upon the death of one of the parties or in the event of a divorce.

Matthaeus, one of our old legal writers, formulated the following principle, which quite accurately captures the nature of a marriage in community of property: ”Die de man ofte wijf trouwt, die trouwt oock de schulden.” which translates to, “He who marries the husband or wife, who also marries the debts.”

2.THE PARTIES HAVE EQUAL POWERS

A couple married in community of property has the same powers with regards to disposal of the assets of the joint estate, the contracting of debts and the management of the joint estate.

3.THE POWERS OF THE SPOUSES

A couple married in community of property may perform any juristic act with regards to the joint estate without the consent of the other spouse. Certain acts may only be performed with the written consent of the other spouse. It is therefore strongly recommended to seek expert legal advice before entering into new contracts. The importance of seeking advice before performing a juristic act, i.e sign a contract, cannot be overemphasised.

Let’s look at an example.

What happens if one spouse registers a mortgage bond over the parties’ house for which the written consent of the other spouse is required but the other spouse did not give such consent? In such circumstances a third party who does not know that the required consent was not given is protected in terms of section 15 (9)(a) of the matrimonial property act. In a practical sense this would mean that a banking institution who registered a bond over the property of the parties would be fully entitled to hold the joint estate, meaning both of the parties, liable for the payment of the bond instalments.

There are further legal consequences to a marriage in community of property. Examples include the maintenance obligations of the parties and inheritance after death. There is no set rule when it comes to deciding which marital regime is preferable as no two people’s circumstances are the same. Ultimately it is up to you and your partner to decide which marital regime will suit your needs the best.