To Be Or Not To Be - A Short Guide To The South African Marital Regimes
When entering into a marriage due consideration must be given to the different marital regimes, which will have an impact on the assets, liabilities, financial capabilities, and the eventual estate planning of spouses. In South Africa, there are two types of marital regimes: in community of property and out of community of property.
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IN COMMUNITY OF PROPERTY
The default marital regime in South Africa is a marriage in community of property. A marriage in community of property results in the establishment of a joint estate between the spouses. The assets and liabilities acquired prior and during the subsistence of the marriage form part of the joint estate. The spouses are co-owners of all assets and liabilities, regardless of which spouse acquired the assets or who incurred the liability.? Upon dissolution of the marriage, either through divorce or death, the joint estate (assets and liabilities) will be divided equally between the spouses.
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OUT OF COMMUNITY PROPERTY
When spouses elect a marriage out of community of property, an antenuptial contract must be concluded prior to the date of marriage and must subsequently be registered in the Deeds Office. During the marriage and upon dissolution of the marriage, either through death or divorce, each spouse will remain the sole owner of their assets and their liabilities.
Whilst concluding an antenuptial contract, the spouses can either include or exclude the accrual system. When the marriage is out of community of property with the accrual system, the spouse with the smaller or no accrual (growth) during the subsistence of the marriage will be entitled to institute a claim against the accrual (growth) of the other spouse accumulated during the subsistence of the marriage.
Adequate legal advice is to be sought prior to entering into a marriage for spouses to make an informed decision.
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领英推荐
Nqobile Ngcongo - Director
Department: Litigation Tel: 031?536 7575
Email: [email protected]
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Senamile Sishi - Candidate Attorney
Department: Litigation? Tel: 031?536 7536
Email: [email protected]
The content of this document is intended only to provide a summary and general overview on matters of interest. It is not intended to be comprehensive nor does it constitute legal or other professional advice. You should seek legal or other professional advice before acting or relying on any of the content.
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