Default Matrimonial Regimes

Mapule Mdluli (Candidate Attorney) 

There is a reputable presumption that when a couple enter into a civil marriage the parties are marrying in community of property.

The community of property regime is referred to as the primary matrimonial property system of the Republic of South Africa. In terms of this regime, the spouses share all their assets and liabilities. The spouses become joint co-owners and their assets become undivided and indivisible half shares. This includes assets which they acquired before and during the subsistence of their marriage.

The issue with the community of property system is that both the spouses will have a limited capacity to transact in certain circumstances. Should a spouse wish to enter into for an example a business contracts, the spouse has to obtain a consent from the other spouse.

However there are those exceptions to the general rule that all assets of spouses become joint. There are those benefits that are excluded for instance any amount accrued to the spouse by way of damages, any donations between the spouses, any inheritance et cetera.

Upon the dissolution of a civil marriage in community of property through divorce, the balance of the joint estate after all the liabilities have been paid, must be divided equally amongst the spouses, unless a forfeiture order is granted against one of the parties, or an adjustment in favour of one them is needed.

If the prospective spouses do enter into an antenuptial contract to exclude the community of property, section 2 of the Matrimonial Property Act 88 of 1984 makes a provision for the accrual system. This matrimonial regime is the second default matrimonial property system. Irrespective of whether the spouses do not state in their antenuptial contract that they would like to get married with accrual system, it would be a default regime for them. Spouses share equally in the accrual growth in their estates during the subsistence of their marriage.

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