'In community of property' means that everything each individual spouse owned and all their individual debts from before their marriage, are included in one single joint estate. In terms of South African Law, people are automatically married in community of property unless they successfully concluded an Ante-nuptial Contract prior to their marriage, and had the contract attested before an attorney who is a Notary.

 

It is essential that you elect your matrimonial regime and finalize your Ante-nuptial Contract prior to your marriage, as to attempt to change it once you have married, is an expensive and time-consuming process. You and your spouse will have to lodge a joint application to the High Court for authority to change your matrimonial property system and there are quite a lot of formalities involved.

Once a couple is married in community of property, everything they earn or buy after their marriage will also form part of their single joint estate, including any debt and liabilities incurred by either one of them. Therefore, should one spouse be reckless with his financial affairs, it will adversely affect the other spouse, as they will be liable for each other's debts. The spouses will also be joint co-owners of all property in the estate and have equal rights of ownership and administration over all the assets. There are various transactions that would require the consent of both spouses. The most prejudicial consequence of being marrying in community of property, is that assets in the joint estate will be vulnerable to any and all the claims of creditors of both spouses and very little can be done to protect their assets against this vulnerability.

This marital regime is not recommended for spouses running independent businesses. Our Insolvency Division often has to deal with clients who were married without having had the benefit of professional advice regarding the registration of an Ante-nuptial Contract. This may lead to premarital or post-marital liabilities that become communal and thereby endangering the good standing of not just one, but both partners. The only real advantage of being married in community of property is that it is based on the fact that marriage is a partnership and as such it can be conducive to a harmonious marriage relationship as it promotes both legal and economic equality of the spouses.

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