The matrimonial property regimes that can be registered in South Africa are governed by The Matrimonial Property Act 88 of 1984. In the event of a divorce of your spouse, the division of property is governed by your respective marriage contract. In the event of death the marriage contract may have an influence in said division depending on the content therein.
In order to make an informed decision, it is imperative to have a complete understanding of the advantages and disadvantages of each option.
It is helpful to know that there is no "best decision" and your decision should be based on both you and your partner's needs and circumstances. In South Africa there are three types of marriage regimes namely:
In community of property
Out of community of property with the inclusion of the accrual system
Out of community of property with the exclusion of the accrual system
The table below is a short summary of each marriage contract.
In community of property
Out of community of property - with accrual
Out of community of property - without accrual
You are married in community of property if you did not sign or register an antenuptial contract. Being married in community of property means that both partners' assets and liabilities are shared and form part of a joint estate.
To be married out of community of property, an antenuptial contract has to be signed and registered. The accrual system protects the spouse that does not contribute to the marriage in a financial manner e.g. one spouse stays home to look after the children.
To be married out of community of property, an antenuptial contract has to be signed and registered. Assets and liabilities aquired before and during the marriage by each spouse form part of their seperate estates. This can best be described as "what's yours is yours and what's mine is mine".
No fees have to be paid for the drafting of an antenuptial contract. The spouses have one estate and enjoy an equal share of all assets. Both spouses consent is required to enter into any legal or financial agreement.
Both spouses share in the assets and wealth accumulated throughout the marriage. Each spouse has financial freedom and can conduct their own financial affairs. Creditors do not have a claim against both spouses. The antenuptial contract can be drafted according to certain needs.
Each spouse keep their own assets and deal with their own estates. If one spouse becomes insolvent, creditors cannot attach the assets of the other.
Creditors have a claim against both spouses, If one spouse is insolvent, the other spouse will also be declared insolvent. Spouses have no financial independence as written consent from both spouse is required for any financial contract.
The Antenuptial contract can only be executed by a Notary Public. Calculating accrual at the dissolution of the marriage can be complex.
The Antenuptial contract can only be executed by a Notary Public. In the event of death or divorce, each spouse is only entitled to the assets in their own name. Should one spouse choose to stay at home (e.g. to raise children), they are not entitled to assets accrued by their working spouse.