Marriage In Community of Property vs. Out of Community of Property | What’s the Difference?

Following on from our recent blog post on the 3 different types of marriage regimes that are recognised under South African law, we’d like to unpack the difference between marriage in and out of community of property. 

Marriage In Community of Property 

The most common practice in South Africa today, is to marry with an antenuptial contract (a contract made between two people before they marry, agreeing on the distribution of their assets in the event of divorce). If, however, this does not happen, the couple will in law be married in community of property. This means that all the assets they bring to the marriage are jointly owned by them. This applies even if they have separate bank accounts and run separate businesses.

Lawyers generally do not like the in community of property arrangement, because it makes it possible for the creditors of one spouse to make legal claims on the other.

On top of this, if one partner dies, the surviving spouse has no access to the estate until it has been wound up by the executor. This has on many occasions resulted in hardship for the surviving spouse, especially if the offspring of the marriage or relatives are unable to help in the interim period.

Marriage Out of Community of Property 

 A marriage out of community of property is achieved by drawing up an antenuptial contract (ANC). In terms of this contract, community of property and profit and loss are excluded. This means that there is no joining of estates and each spouse keeps his/her estate separate. However, the spouses can choose to either include or exclude the accrual system from their ANC.

When the accrual is included, a spouse will be entitled to share in the growth of the two estates at divorce.

If you are getting married and need more information about choosing the legal regime for your marriage, please contact us.