When You Marry without entering into an Antenuptial Contract. In short, both parties share in assets and liabilities before and after marriage. The parties are thus exposed to their spouse's debts and business risk. We do not recommend parties to Marry In Community of Property.

If you do not enter into an Antenuptial Contract prior to your marriage, you will automatically be married in community of property in terms of South African Law. Both parties’ individual estates will be combined into one jointly owned estate by the marriage. This means that all pre-marital assets, debt and liabilities are all pooled into one estate once the marriage is concluded, from which point onwards, only one jointly owned estate will exist. Both parties will be jointly liable for debt-repayment towards their combined creditors, irrespective of who incurred the debt. This means that if one of the parties behaves in a financially irresponsible way, the other party will also suffer because of it. Also, the parties will be exposed to the business risks of the other party and will in practice not have the freedom to trade.

'In community of property means that everything each party had prior to the marriage, assets as well as liabilities, are pooled into one single jointly owned estate, once the parties marry. From this point onwards everything they earn or buy will also form part of this jointly owned estate. This also pertains to any debt or liabilities either one of them incur during the marriage. Should one spouse be reckless with his or her financial affairs, it will adversely affect the other spouse, as they are both totally liable for the debts of their jointly owned estate. As both parties are joint owners of all property in their jointly owned estate, both parties have equal rights of ownership and administration over all the assets.

Once married in community of property, there will be various transactions that require the consent of both parties. The most prejudicial consequence of marrying in community of property, is that assets in the joint estate will always be vulnerable to the claims of creditors of both spouses.

This marital regime is definitely not recommended for spouses running their own independent businesses as premarital and post-marital liabilities will become communal, thereby endangering the good standing of not just one, but both spouses.

The parties further do not have trade freedom as they need oral, written or tacit permission from their spouse to perform certain actions:

Transactions requiring the written consent of the other spouse

Section 15(2) of the Matrimonial Property Act provides that a spouse may not, without the written consent of the other spouse:

(a) Alienate, mortgage, burden with a servitude or confer any other real right in any immovable property forming part of the joint estate;1

(b) enter into any contract for the alienation, mortgaging, burdening with a servitude or conferring of any other real right in immovable property forming part of the joint estate;2

(c) alienate, cede or pledge any shares, stock, debentures, debenture bonds, insurance policies, mortgage bonds, fixed deposits or any other similar assets, or any investment by or on behalf of the other spouse in a financial institution, forming part of the joint estate;3

(d) alienate or pledge any jewellery, coins, stamps, paintings or any other assets forming part of the joint estate and held mainly as investments;4

(e) withdraw money held in the name of the other spouse in any account in a banking institution, a building society or at the Post Office Savings Bank of the Republic of South Africa;5

(f) as a credit receiver enter into a credit agreement as defined in the Credit Agreements Act, 1980 ( Act No. 75 of 1980), and to which the provisions of that Act apply in terms of section 2 thereof;6

(g) as a purchaser enter into a contract as defined in the Alienation of Land Act, 1981 (Act No. 68 of 1981), and to which the provisions of that Act apply;7

(h) bind himself as surety.

In addition hereto, where a spouse wishes to institute or defend legal proceedings that do not relate to a spouses profession, trade or business, written consent of the other spouse is required.

Transactions requiring informal consent

Informal consent does not need to be in writing or witnessed and it may be obtained by ratification after the act.1 Section 15(3) of the Act provides that a spouse may not without the consent of the other spouse enter into the following transactions although ratification by the other spouse is permitted in s 15(4):

(a) alienate, pledge or otherwise burden any furniture or other effects of the common household forming part of the joint estate;

(b) receive any money due or accruing to that other spouse or the joint estate by way of -

(i) remuneration, earnings, bonus, allowance, royalty, pension or gratuity, by virtue of his profession, trade, business, or services rendered by him;

(ii) damages for loss of income contemplated in subparagraph (i);

(iii) inheritance, legacy, donation, bursary or prize left, bequeathed, made or awarded to the other spouse;

(iv) income derived from the separate property of the other spouse;

(v) dividends or interest on or the proceeds of shares or investments in the name of the other spouse;

(vi) the proceeds of any insurance policy or annuity in favour of the other spouse;

(c) donate to another person any asset of the joint estate or alienate such an asset without value, excluding an asset of which the donation or alienation does not and probably will not unreasonably prejudice the interest of the other spouse in the joint estate, and which is not contrary to the provisions of subsection (2) or paragraph (a) of this subsection.

Consent unnecessary

Consent is unnecessary for a certain transaction, specifically those transactions that are performed by the spouse in the ordinary course of his or her profession, trade or business;1 transactions on the stock exchange of listed securities and deposits into a banking institution in the name of the spouse who wishes to deal with the deposit.

Comparison Table between Marriage in Community of property and other matrimonial property regimes.