CHOOSING A MATRIMONIAL PROPERTY REGIME

You are getting married, you have your date set and the venue has been booked. You may have already arranged your flowers, seating cards and have a photographer set.

But have you thought about the legal consequences of your chosen matrimonial property regime, if you have chosen one at all?

Whether you are protecting your partner and your own interests during the subsistence of the marriage or in the (hopefully unlikely) event you two divorce, it is important to choose a regime suitable to you.

Married in Community of Property:

This is the “default setting” for marriages. If you do not sign an antenuptial contract (“ANC”) your marriage will automatically be one of married in community of property.

Both parties own the joint estate together.

All the assets and liabilities you bring to the marriage become both your assets and liabilities and visa versa.

From a financial and business viewpoint, this regime is not advisable, as you both stand to lose everything.

Married out of community of property without accrual:

This regime is effected by entering into an ANC before the wedding takes place.

Any property owned by each party prior to entering into the marriage, as well as, any property accumulated during the subsistence of the marriage remains the property of that individual person.

This is also applicable for any liabilities (debts).

You are free to deal with your estate as you wish.

Married out of community of property with accrual

The net value of each party’s estates at the end of the marriage less the net value of each party’s estate at the start of the marriage is divided equally between the two parties. This amount is known as the accrual.

Inheritances, donations between the parties and assets expressly excluded from their respective estate are excluded from the accrual at the dissolution of the marriage.

An ANC will need to be concluded between the parties prior to the marriage.

This type of regime is most favoured.