Getting married? How to choose a marriage regime

Essentially, you have two good options. Here they are: the benefits and drawbacks of
(i) a marriage in community of property and
(ii) a marriage out of community of property with accrual.

In community of property
• Both spouses enjoy an equal share in all assets except for donations, inheritances and damages for pain and suffering.
• If either spouse has debt, the other spouse is also liable for that debt, all their assets can be attached to pay the debt, and if either spouse becomes insolvent, both spouses will be insolvent which means they would lose everything and both would be prohibited from various transactions for the period until the spouse have become rehabilitated i.e. are no longer insolvent, which can last two years or more.
• Each contract has to be entered into by both spouses- both have to sign all the forms, and both are bound to the contracts (car finance, accounts at retailers, lease/bond, insurance, subscriptions, doctors’ bills, anything you sell or buy etc).

Out of community of property with accrual
• It is highly recommended if either spouse could possibly co-/own their business in the course of the marriage, due to the risk of insolvency and attachment of assets affecting only one spouse.
• Each spouse’s assets can be kept and administered / sold separately, and no consent from the other spouse is needed to deal with assets / accounts / pensions etc.
• Each spouse can run his / her business (if any) without the consent and signature of their spouse for every transaction.
• Spouses don’t share in each other’s assets and there is no need to know about or consent to the other’s financial matters, but partners who trust each other would share that information with each other anyway (or not care about the detail of what the other one is spending on / investing in).

If you want to have the benefits of a marriage out of community with accrual, you have to enter into a contract BEFORE you get hitched. Feel free to contact Trudie for a consultation. We usually charge R3500 and will advise you in detail on the legal implications of marriage, the requirements for a legally binding marriage and draft the contract as well as having it registered. We advise most couples to go for a marriage out of community with accrual, but each couple is different.

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