In or out of community of property?

A newly engaged couple
A newly engaged couple

According to the South African law, there are two marital systems – in community of property and out of community of property with or without accrual. This is according to Juan Smuts, a family lawyer at Abrahams & Gross Attorneys. Before you say I do, consider looking into what you want, and choosing an option that best suits you and your partner. 

Marriage in community of property

Being married in community of property means that both of you are the owners of your joint estate. Therefore, the assets and liabilities of the estate will be divided equally in case of a divorce. All the assets you brought into the marriage, as well as those and any liabilities you acquired while married, form the joint estate. But, there are a few exceptions to the rule, such as inheritance and personal damages claims.

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Out of community – without accrual

Automatically, a marriage is assumed in community of property unless you enter into an antenuptial contract. This governs the way the assets and liabilities will be divided. If you exclude the accrual system, then any asset/liability you acquired before getting married, and during its subsistence, only belongs to you. Should the marriage end, you will both retain your own assets and liabilities.

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Out of community of property – with accrual

The accrual system is automatically applied if you enter into an antenuptial contract. This is unless the contract expressly excludes it. If it is included, then any assets/liabilities you acquired before the marriage only belongs to you. However, you will share the assets accumulated during your marriage, as well as their increase in worth. Certain things can be excluded, such as inheritance, donations and assets explicitly excluded in the contract.

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What is an accrual?

The accrual is the amount by which the estate of each party has increased. That is what you then share. Should you divorce, the accrual is determined by calculating the difference between the value of your estate at the dissolution of the marriage, and its commencement. The biggest advantage is that you don’t share in each other’s liabilities. So, any debts that you incurred when married are only enforceable against your estate because the other spouse only shares in the accrual upon dissolution of the marriage.

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