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Summary MARRIAGE - FAMILY LAW
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Family Law: Topic 6Patrimonial Consequences of Marriage
What is Marital Property?
- Marital or matrimonial property is everything that is owned by a married
couple.
- Therefore, marital property means property owned by people who are
married to each other.
- This includes property as well as all assets. Bank accounts are also
shared.
- Their matrimonial property system regulates their debts.
Why are these Rules Important?
- Generally knowing who owns what isn’t important, however when the
marriage ends, in the case of bankruptcy or if a spouse wants to sell or
give things to a third party, it is important to know.
Matrimonial Property Systems
- A matrimonial property system is a set of rules which determines who
owns the marital property, who owes the debt, whether spouses can sell or
give things to other people, and how the property should be shared out
when the marriage ends.
- Determines several other matters- whether a spouse can get a credit card
or bring a court case.
- Matrimonial property system will tell us who owns assets, who is
responsible for liabilities and who can administer the estate.
- While there is an overlap between matrimonial property systems and
obligation to support, this obligation is present regardless of which
matrimonial property system applies to their marriage.
There are three main matrimonial property systems:
1. In community of property: Everything is shared and jointly owned.
Everything falls under the communal marriage estate – jointly owns all
the assets and liabilities- profits and losses.
Residual/ default regime – everything gets split in half.
Advantages – Get half of everything even if you didn’t earn it.
Works best for the person with the least assets.
2. Out of community of property without accrual system: Nothing is
shared, ownership is separate. They do not share profits and losses.
, 3. Marriage out of community of property with accrual system: The
spouses own everything separately during the marriage, and all gains
made during the marriage are shared at the end.
Marriages in Community of Property
The Default Matrimonial Property System
The in-community-of-property system is the default matrimonial
property system in South Africa.
Therefore, if couples marry in South Africa, they will be married in
community of property, unless:
o This is the default unless the couple signs an ante nuptial
stating differently or the husband is domiciled in a country
where the default is out of community of property.
o It is also the default when couples marry monogamously
under customary law.
Sharing Everything
Everything owned at the time of the marriage and everything
acquired during the marriage is added to the joint estate (assets
and debts).
The spouses are tied co-owners of the undivided and indivisible
joint estate.
No documents need to be signed or changed, this all happens
automatically.
It doesn’t matter what a spouse brought into the marriage, they own
everything equally – including debts. When a marriage ends the
joint estate is automatically divided in half.
Separate Property that Does Not Fall into the Joint Estate
General rule: all assets fall into the joint estate and become the
joint property of both spouses.
However, there are some exceptions to this rule:
1. Excluded by an antenuptial contract: The spouses can
sign an antenuptial contract which provides that certain
assets that they own at the time of the wedding will not fall
into the joint estate. Pretium succedit in locum rei1 and res
succedit in locum pretii2. If a spouse sells something that was
excluded the money remains theirs. This contract only
1
The price replaces the thing.
2
The thing replaces the price/ money.
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