In terms of South African Law, people can either marry in community of property or out of community of property. Your choice will determine your proprietary rights during your marriage, as well as when it is dissolved - either by death or divorce. It is essential that you elect your matrimonial regime prior to the marriage; as to try to change it thereafter is an expensive and time-consuming process. You and your spouse will have to make a joint application to the High Court for authority to change your matrimonial property system. There are a lot of formalities involved including placing an advertisement in the newspaper to notify creditors.
You are automatically married in community of property in terms of South African Law if you did not sign an Antenuptial Contact prior to your marriage. The Antenuptial Contact also had to be attested before an attorney who is a Notary prior to the marriage, as only a Notary can execute an Antenuptial Contract. The contract will then be lodged in the Deeds Registries Office for registration.
'In community of property' means that everything each individual spouse owned and each of their individual debts from before their marriage are put together in a joint estate. From this point onwards everything they earn or buy after their marriage will also form part of this joint estate, including any debt and liabilities incurred by either one of them.
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 however also be joint owners of all property in the estate. Both spouses therefore have equal rights of ownership and administration over all the assets.
There are various transactions that require the consent of both spouses. The most prejudicial consequence of marrying in community of property, is that assets in the joint estate are vulnerable to the claims of creditors of both spouses and very little can be done to protect 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 Antenuptial 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.