In South Africa, the default position is that a marriage between two spouses will be entered into in community of property unless the parties have concluded an ante-nuptial contract prior to their marriage. At this stage customary law marriages are not seen as marriage protected under the South African Law, but the inclusion of these types of marriages are under review currently.

All the assets and debt from before the marriage are shared in a joint estate between the spouses; and all assets, debts and liabilities acquired by either spouse after their marriage will be added to the joint estate.  

Please note that this also means that should any debts be incurred by one partner, the debt amount falls to the joint estate and both parties become liable for such debt.

An automatic division of assets to the worth of 50% of the value of the Estate will also be done in the Administration of a deceased Estate or in case of divorce.

Unfortunately, this type of marriage may be risky, taking into account that in South Africa your credit score will be impacted without your knowledge. Should your partner default on payments, it will automatically negatively impact your ability to apply for any credit.

Please also note that even if you should be estranged from your spouse, you will still be liable for all financial decisions made by them.

A marriage out of community of property (without accrual) is achieved by drawing up an ante-nuptial contract (ANC). In terms of this contract, community of property and profit and loss are excluded. This means that there is no joining of estates and each spouse keeps his/her estate separate.

At the stage of divorce/death no automatic claims can be made against the estate of the other party.

Where a couple is married out of community of property with the accrual system, each spouse keeps a separate estate over which they have absolute control and independence. Only once the marriage comes to an end, for example on death of one of the spouses or divorce, a claim comes into existence to a share of the accrual.

Accrual means all assets and liabilities accumulated after the date of marriage and may be seen as only a protection of assets or liabilities incurred before the marriage.

Should you wish to be referred to a lawyer for assistance with the drafting of an ante-nuptial contract (ANC), we can gladly refer you to a reputable firm, at a lower than normal cost.