Should I Marry In Community Of Property

 

Getting Married In Community Of Property

Marriage is universal, it doesn’t matter where you go in the world people share almost the same view about marriage.  Over the years people have changed, women, in particular, have come a long way and things have transformed and many times we see couples staying together before the actual marriage. During the “staying together” cohabitation period there are no legal bounds. Couples may be sharing bills during this period but there are no commitments or signed agreement, that therefore means the shared responsibilities or assets (homes, vehicles, etc.) create challenges during the breakup process, should it occur.  Marriage on the other hand is a more legal and socially accepted form of relationship between couples. This lifelong commitment made between two people is a legal union that needs one to fully understand the pros and cons before deciding to get married. One should understand important issues such as religion, finance, occupation, whether to give birth or not, those things should be discussed so that the couple can understand each other's perception. 

There are three types of matrimonial property systems in South Africa:

1.       Marriages in community of property.

2.       Marriages out of community of property, which are subject to the accrual system.

3.       Marriages out of community of property, excluding accrual.

Today we are going to focus on the disadvantages of marriages in community of property:

It is no secret that many young people nowadays enter into marriage with kids from previous relationships. Therefore before getting married, it is important to meet with your partner and discuss what assets, liabilities, and responsibilities each party is bringing to the marriage.  You may have substantial joint income but if you or your partner have children from previous relationships your finances might need to cover a little more than they used to.  It is unrealistic to think you’re your partner might have the best interest of your children. In the real world, children are affected when their step-parent's divorce or the biological parents dies and leave assets with the step-parent.  Therefore getting married in a community of property is not a good idea because in this form of marriage the two estates are joined together into one estate of equal, undivided shares. No antenuptial contract is required, so if you marry without an antenuptial contract, you will by default be married in the community of property. In this form of marriage, the spouses’ estates (what they own/assets and any debt/liabilities) are joined together and each has the right of disposal over the assets; they are equal concurrent managers of the joint estate. Each has an undivided or indivisible half share of the joint or communal estate.

Getting married in community of property means that you are responsible for all debt incurred by your spouse – even debt that was incurred before your marriage. If you are the financially stronger spouse going into the marriage, your financial position could be weakened by being in a community of property.

One of the most devastating consequences of a marriage in community of property is that when one spouse becomes insolvent (cannot pay his/her debts), both spouses will be declared insolvent because there is one communal estate. If there is a court order against either one of the spouses, the communal estate can be lost. On that note, if a couple is married in a community of property, all their assets can be seized by a court order to pay the creditors the money owing to them, even though the one partner may have had no connection with the business or had been in no way involved in running up the other individual’s too large debts.

If the spouse happens to die intestate (without a will in place), the surviving spouse will be given only half the assets, the other half automatically be set aside for the dependents (in most cases usually the children or in the absence of children the nearest relations).

Another point to consider is that if the marriage ends in divorce, your possessions and wealth will be split equally, regardless of who brought what into the marriage.

 

 By

Independent Writer