06/09/2026
SOME PROS AND CONS TO CONSIDER WHEN DECIDING ON WHICH MARRIAGE REGIME SHOULD RULE YOUR MARRIAGE.
MARRIAGE IN COMMUNITY OF PROPERTY
• No antenuptial contract is needed which saves the costs of the notary and registration fee at the Office of the Registrar of Deeds.
• An automatic half share is available to both spouses in respect of the accrual of the estate.
• The spouses make joint financial decision which encourages input from both parties into their financial future.
• The creditworthiness of both parties will be jeopardised in the case of bad debt.
• Assets and liabilities of both parties acquired prior to the marriage are shared after the marriage.
• The principle of joint liability results in neither spouse being protected against the creditors of the other – insolvency, in particular, is a serious problem in this system.
• As long as the marriage remains happy the estate is easy to administer by taking joint decisions, but once the marriage breaks down the requirements of joint consent and the sharing of the assets in the case of divorce, can cause great problems.
• When one of the spouses, passes away, the joint estate is frozen during the administration of the estate and it can cause a cash-flow problem for the surviving spouse.
MARRIAGE OUT OF COMMUNITY OF PROPERTY AND COMMUNITY OF PROFIT AND LOSS WITHOUT THE ACCRUAL SYSTEM
• Each spouse retains his or her separate estate (assets and liabilities) which is to the benefit if both parties have significant estate and wish to retain their own estate.
• Each spouse retains the property acquired before and after the marriage.
• The spouses are not liable for each other’s debts incurred before or after the marriage and each spouse only binds himself or herself when contracting. Each spouse’s estate is protected against the other spouse’s creditors, except possibly when one spouse is insolvent on the dissolution of the marriage.
• Each spouse retains full capacity to enter into contracts without the other’s assistance and can enter into contracts with each other.
• Spouses do not share in each other’s creditworthiness should one have a bad credit record.
• When one of the spouses, passes away, there is not joint estate and the surviving spouse can freely deal with his/her own estate.
• It is necessary to execute an antenuptial contract before the date of the marriage – the costs normally being in the vicinity of R2000, 00 plus vat if proper consultation and ex*****on is done by a Notary Public.
• The spouses have no legal right to share in the growth of each other’s estates. This could be disadvantageous to the wife/husband who could find herself/herself with only a claim for maintenance in terms of the Maintenance for Surviving Spouses Act and an application to court in terms of the Divorce Act for a redistribution order.
• Spouses do not share in each other’s creditworthiness which can have the result that the non-working wife/husband may have little creditworthiness during the marriage if her/his estate is small
MARRIAGE OUT OF COMMUNITY OF PROPERTY WITH THE ACCRUAL SYSTEM
• Each spouse retains his or her separate estate (assets and liabilities) which is to the benefit if both parties have significant estate and wish to retain their own estate.
• Each spouse retains the property acquired before and after the marriage.
• The spouses are not liable for each other’s debts incurred before or after the marriage and each spouse only binds himself or herself when contracting. Each spouse’s estate is protected against the other spouse’s creditors, except possibly when one spouse is insolvent on the dissolution of the marriage.
• Each spouse retains full capacity to enter into contracts without the other’s assistance and can enter into contracts with each other.
• Spouses do not share in each other’s creditworthiness should one have a bad credit record.
• Estates (assets acquired and liabilities incurred) prior to the marriage are not shared, only the accrual to both estates during the subsistence of the marriage.
• When one of the spouses, passes away, there is not joint estate and the surviving spouse can freely deal with his/her own estate.
• It is necessary to execute an antenuptial contract before the date of the marriage – the costs normally being in the vicinity of R2000, 00 plus vat if proper consultation and ex*****on is done by a Notary Public.
• On the dissolution of the marriage, the division of the accrual can sometimes be complicated.
• One of the spouses may not act wisely when it comes to accruing assets and this may result in the other parties finding him/herself with a claim against him/her for the accrual.
