What you need to know about getting married in community of property in South Africa

StatsSA recently published marriage and divorce statistics, noting that a total of 135,458 civil marriages, 2,588 customary marriages, and 1,357 civil unions were registered in 2017.

By comparison, there were 25,390 completed divorce forms processed – indicating an increase of 0.3% from the 25,326 processed in 2016.

There were more female (51.0%) than male (35.0%) initiators of divorce, with the median ages at divorce in 2017 at 44 years for men and 40 years for women.

The findings show that four in ten divorces (44.6%) of the 25,390 in 2017 came from marriages that did not reach their tenth wedding anniversary.

In 2017, there were 14,121 (55.6%) divorces with children aged less than 18 years affected.

With statistics showing these rates of divorce in South Africa, there are a few questions you should ask yourself before popping the question.

Should you marry in community of property?

Consumers need to be very careful when they opt to get married in community of property, say Benay Sager COO at DebtBusters.

According to Sager, it is one thing helping your spouse through a financially difficult time, but you should avoid a situation where you are also legally liable for their debt.

“If a couple choose to get married out of community of property, it means that if one of them get into financial trouble somewhere down the road, they are able to undergo debt counselling to become financially rehabilitated, without the need of their spouse’s consent or willingness to go under debt counselling jointly,” he said.

“If your partner has debt prior to getting married in community of property, once you are married both spouses will be jointly and severally liable for the full debt amount, and it will be your joint responsibility to pay the credit provider/s back.”

He added that any new credit agreements you or your spouse enter into during the marriage will also form part of your joint estate and therefore both you and your spouse will be liable for the repayment of the debt. This can become a point of contention in a marriage.

“If you are married in community of property and find yourself in financial trouble, and wish to seek debt counselling for financial rehabilitation, this will need to be a joint decision effecting you both equally, as this will constitute as a joint application.

“On the other hand, if your spouse becomes over-indebted, you will need to agree to going under debt counselling with your spouse – even if you are financially stable or don’t have credit on your name.”

Sager said that DebtBusters has seen a significantly higher number of single debt counselling applications (applicants who are either single or married out of community of property) than joint debt counselling applications (applicants who are married in community of property) each year.

This could indicate that less people are getting married in community of property and that applicants who are single are finding it hardest to make ends meet, but could also mean that a financially healthier spouse could be more reluctant to go under debt counselling with their over-indebted counterpart, he said.

“In 2018, only 19% of new clients were joint applications (married in community of property).

“In addition to this, out of all the joint applications that enquired with DebtBusters in 2018, only 32% signed up for debt counselling whereas 46% of single applications who enquired with DebtBusters signed up for the process.”

Can you change your marriage status?

Couples can often rush into marriage, and before they realise it, become bound by South Africa’s default marital regime which is that of ‘In Community of Property’.

This means that one joint estate belongs to both spouses in equal undivided shares.

However, couples can choose to amend their marital regime to one of out of Community of Property – with or without the accrual system, according to Juan Smuts of law firm Abrahams and Gross.

“Amending your marital regime is provided for in the Matrimonial Property Act.

“More specifically, section 21 (1) of the Act provides that a married couple may jointly apply to court in order to amend the existing matrimonial property regime,” it said,

According to Abrahams and Gross, the Act further provides various requirements that have to be met in order to qualify for the amendment such as:

  • There must be sound reasons for the proposed change;
  • Notice of the intention to amend must be given to the Registrar of Deeds, must be published in the Government Gazette and two local newspapers at least two weeks prior to the date on which the application will be heard, and must be given by certified post to all known creditors;
  • Draft a notarial contract – which the parties propose to register – which must also be annexed to their application;
  • Rights of creditors must be preserved in the proposed contract;
  • Confirmation that no other person will be prejudiced by the proposed change;
  • The application must contain sufficient information about the parties’ assets and liabilities to enable the court to ascertain whether or not there are sound reasons for the proposed change and whether or not any particular person will be prejudiced by the change.

Read: 4 ways South Africans are richer than you think

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What you need to know about getting married in community of property in South Africa