It is often mistakenly believed that people who got married out of community of property were solely preparing for a divorce. As portrayed in many movies, one partner is usually shocked and offended when the other suggests signing an antenuptial contract.
To summarise, when you get married in community of property, all liabilities, and assets before and after marriage, with some exceptions, become part of your joint estate- the familiar “What’s yours is mine and what’s mine is yours”- expression comes to mind.
If you get married out of community of property, your assets and debt remain your own and vice versa.
Now, some of you will be worried about getting married out of community of property. You have heard many stories.
A popular concern is that you support your spouse during his/her studies. You work hard until your spouse reaches his/her dreams and becomes financially independent. Then your spouse leaves you and you are left with “nothing”. You will not even have a claim against his/her pension fund.
We completely understand this concern, and it is an unfortunate situation if you are left with nothing after giving up so much of your time and energy. It is important to note that, if you are married in community of property he/she will also have a claim against your pension fund. It works both ways. You will also be liable for 50% of the debt.
If you are married in community of property you can, however, ask for a forfeiture order to be granted or settle on different terms during the divorce. Both of these routes are not certain and therefore entail a risk in our view.
A forfeiture order can be granted in respect of a specific asset. If you, for example, paid the mortgage bond for many years and your spouse moved out and had not been living with you for a long time during the marriage, you can ask that your house be forfeited from the division of the joint estate. A forfeiture order is however subject to the court’s discretion.
A settlement agreement can also be reached between spouses in respect of the division of the joint estate, but will however only be made an order of court if both spouses are in agreement with its terms.
If you want to have individual estates, but you also want to prepare for the dissolution of the marriage, we suggest that you consider getting married out of community subject to the accrual system. This will allow you to keep individual estates, but at dissolution of the marriage (or even during the marriage- see Section 8 of the Matrimonial Property Act 88 of 1984 ), the spouse whose estate shows the least growth will have a claim against the estate of the spouse whose estate shows the most growth from date of marriage.
The implication of the accrual system is outlined in Section 3(1) of the Matrimonial Property Act 88 of 1984, which provides that at the dissolution of a marriage subject to the accrual system, by divorce or by the death of one or both of the spouses, the spouse whose estate shows no accrual or a smaller accrual than the estate of the other spouse, or his estate if he is deceased, acquires a claim against the other spouse or his estate for an amount equal to half of the difference.
This system caters for, inter alia, a spouse who supported his/her spouse to enable him/her to achieve his/her goals and as such contributed to the growth of that spouse’s estate. Perhaps he/she allowed and financially supported his/her spouse to study while he/she was working, or perhaps he/she stayed home to raise the children and supported the household.
The application of the accrual system is beyond the scope of this article as this article’s main objective is to emphasize the protection a couple may enjoy during the subsistence of a marriage and not at divorce stage.
In practice, parties to a marriage often enter into a marriage without deciding the marital regime that will be applicable to their marriage, only to be faced with consequences that they did not prepare themselves for.
We understand that every situation is different and in order to make the best decision in this regard, we strongly suggest that all couples consult with an attorney prior to making a final decision.
Either marital regime could provide some relief at divorce stage, or not. The point which we are desperately trying to get across is that it’s not only about preparing for a divorce.
it’s not only about preparing for a divorce.
The remainder of this article will focus on the protection from creditor claims during the marriage.
Here is a short love story:
Samantha and James Smith got married out of community of property in December 2014. After the wedding the couple moved into Samantha’s home which was registered to her name. They sold James’ bachelor flat and most of his ugly furniture. Samantha compromised by letting him keep the strange looking wooden clock he made when he was 5 years old. She loved how proud he was of it. She loved it even more when it was out of sight.
Samantha’s next birthday was coming up in October 2015.
James was planning a big surprise for her. He ordered a beautiful diamond necklace from one of the best jewelers in town. He signed an agreement with the shop to design and create the necklace. He knew at the time that he would be liable to pay for the necklace upon completion. He asked the jeweler to order enough diamonds to give it that “something extra”. The jeweler quoted James R200 000.00. Nothing was too expensive for his darling wife. James paid a deposit of R150 000.00 without blinking an eye.
By July James’ business was blooming and he was reaping what he believed to have been the fruit of his hard work. He thought that things were going very well when he employed a new manager, Mike. Mike constantly attracted new clients. Mike even told James he didn’t need to come into the office every day. Mike “handled everything”.
In August, James and Samantha went on a very expensive holiday. He spent well over his budget on this holiday, but he convinced himself that he deserved it. After all, he worked hard to get to where he was. He was sure that the money for the necklace would be available in October. Mike was “handling things”.
September came. Mike disappeared. The business accounts were all empty and creditors were lurking around like hungry wolves. James was horrified and broke. The jeweler called him three times a day, advising him that the necklace is ready. He had to pay the remaining R50 000.00 and collect it. James tried to negotiate a deal but the jeweler reminded him of their contract. He was liable for the full amount. The next week the jeweler commenced legal action against him.
James couldn’t even buy Samantha a chocolate for her birthday. He felt terrible. The business was folding and Mike was nowhere to be found. Mike left James’ business in a lot of debt. One Million Rand to be exact. Unfortunately, James signed surety agreements for the business debt which meant he could personally be held liable for the business’ debt.
Many judgments were taken against his business and he was cited. The Sheriff first arrived at the business premises and removed all business assets. It was sold on auction for about R500 000.00. The remainder of the debt could now be claimed from James personally.
James’ personal debt was also not being adhered to as the business could no longer pay his salary. The jeweler sold the necklace on auction for R65 000.00 and agreed that the account, which included legal costs and interest, was now settled.
Creditors in respect of his credit cards and clothing accounts had all commenced legal action. Luckily, Samantha did not sign as surety for any of James’ personal debt.
Their house and the furniture belong to Samantha’s separate estate. Samantha had proof of ownership for all furniture, vehicles, and appliances. The sheriff could not sell any of these items, because they were married out of community of property.
James and Samantha had a roof over their heads, a bed to cuddle in and a TV to distract James from his business’ failure and future problems.
The Sheriff was welcome to remove the wooden clock, of course!
James had time to pick up the pieces and today he is once again a successful business owner … this time he will be “handling” his own things.
This would have been completely different, had they been married in community of property. This serves as an illustration of a happily married couple not losing everything and as such enjoying protection thanks to a marriage out of community of property.
If you would like to get married out of community of property, you need to approach a special kind of Attorney, called a Notary, to assist you prior to the wedding. The Antenuptial Contract will be formally registered, a requirement for it to be binding to third parties (creditors). If you do not approach a Notary and if it is not registered as it should be, you will be married in community of property as far as third parties are concerned, even if you signed the agreement.
If you are already married in community of property, you can change your marital regime to out of community of property by means of a High Court Application. This could be quite costly and the outcome is subject to the court’s discretion. The court will consider, along with other factors, whether your creditors’ rights will be adversely affected by the change.
In conclusion, we believe that a marriage out of community of property could be quite romantic. By limiting the creditor’s rights, you’re basically protecting each other. “Us against the world” suddenly sounds much more romantic compared to “What’s yours is mine and what’s mine is yours”.
“Us against the world” suddenly sounds much more romantic compared to “What’s yours is mine and what’s mine is yours”.