There are basically only two marital regimes in terms of South African Law:
- In community of property; or
- Out of community of property with application of the accrual system.
- Out of community of property without application of the accrual system
If you do not enter into an Antenuptial Contract prior to your marriage, you will automatically be married in community of property in terms of South African Law. Both parties’ individual estates will be combined into one jointly owned estate by the marriage. This means that all per-marital assets, debt and liabilities are all pooled into one estate once the marriage is concluded, from which point onwards, only one jointly owned estate will exist. Both parties will be jointly liable for debt-repayment towards their combined creditors, irrespective whom incurred the debt.
This means that if one of the parties behaves in a financial irresponsible way, the other party will also suffer because of it. Also the parties will be exposed to the business risks of the other party and will in practice not have freedom to trade. To change your marital regime after you've gotten married will be a time consuming and very expensive process. Also note that such a change will not prejudice the existing creditors' rights. It would involve a joint application by both parties to the relevant High Court for consent to effect the change. The application and preceding process involves a lot of formalities. Only if and when the High Court grants the consent, will you be permitted to proceed to change your marital regime. As your choice of a marital regime will determine your proprietary rights during your marriage, as well as when it is dissolved – either by death or divorce it is imperative that you choose prior to your marriage whether you want to get married 'in community of property' or 'out of community of property'.
'In community of property' means that everything each party had prior to the marriage, assets as well as liabilities, are pooled into one single jointly owned estate, once the parties marry. From this point onwards everything they earn or buy will also form part of this jointly owned estate. This also pertains to any debt or liabilities either one of them incur during the marriage. Should one spouse be reckless with his or her financial affairs, it will adversely affect the other spouse, as they are both totally liable for the debts of their jointly owned estate. As both parties are joint owners of all property in their jointly owned estate, both parties have equal rights of ownership and administration over all the assets.
Once married in community of property, there will be various transactions that require the consent of both parties. The most prejudicial consequence of marrying in community of property, is that assets in the joint estate will always be vulnerable to the claims of creditors of both spouses. This marital regime is definitely not recommended for spouses running their own independent businesses as premarital and post-marital liabilities will become communal, thereby endangering the good standing of not just one, but both spouses.
'Out community of property' means that the parties involved entered into a contract, a written agreement Notarised by a Notary Public prior to the marriage in terms of which each spouse usually retains his or her separate property and have complete freedom to deal with that property as he or she chooses. If during the marriage, one spouse is declared insolvent, the others property is protected from the insolvent spouse's creditors, subject to Section 21 of the Insolvency Act.
Should you choose this option as your marital regime, you will have to decide whether the accrual system should be applied or not. Under both options of married out of community of property (with or without the accrual system), one spouse's creditors cannot hold the other spouse responsible for debt repayment, in direct contrast to the case where the parties are married in community of property.
The accrual system is applicable to all marriages out of community of property, unless the prospective spouses specifically exclude the accrual system in their contract. 'Accrual' means increase and the accrual system is a form of sharing the assets that are built up during the marriage.
The underlying philosophy in respect of the accrual system is that each party is entitled to take out the asset value that he or she brought into the marriage, and then share what they have built up together. It is however possible to draft the Antenuptial Contract in such a way that the parties share both their pre-marital and post-marital assets on a 50/50 basis, just as if they were married in community of property, but without incurring liability for each other’s debt.