One of life's greatest joys is falling in love with the man or woman of your dreams, getting married and living happily ever after. However, while planning for the impending nuptials, many couples fail to cater for the dissolution of the marriage. As the old adage says, 'Hope for he best but plan for the worst!� The dissolution of a marriage occurs either through divorce or death which unfortunately means that at some point every marriage will come to an end. This being the case it is of vital importance that this event be planned for even before the vows are exchanged. The sad truth of the matter though, is that so few couples take the time to do so. Indeed, as many come to learn, the time and money spent in arranging your matrimonial regime and in doing some basic estate planning before the wedding is a drop in the ocean in comparison to the legal fees and frustration one incurs without having done so.

Furthermore, although it is possible to approach a Court to seek an order that your marital regime be changed, after your wedding day, it is an expensive and somewhat frustrating process and may not always be possible. In comparison it is a relatively cheap and simple exercise to obtain proper legal advice before you tie the knot. This will ensure that you enter into the type of regime that will best cater for your dreams and aspirations. This being the case, it must make some sort of sense to, at the very least, familiarise oneself with the choices that are on the South African matrimonial menu and so what follows is a very brief summary of that menu.

People getting married in South Africa, whether it be a civil or customary union, have the following options: 'In Community of Property', 'Out of Community of Property (with accrual)' and 'Out of Community of Property (without accrual)'.


This type of marriage is really the default option. If a couple get married and there is no ante-nuptial agreement entered into between them, then this type of marital regime subsists. How it works is that, everything the individual spouses owned before the marriage, including his/her debts, gets combined and lumped together into what is known as a joint estate. Going forward, everything they continue to earn, acquire or purchase after their wedding date and up until date of dissolution will also form part of this joint estate. What must also be borne in mind is that the partners become jointly and severally liable for the debts of the other. Hence, if Mr X buys a motor vehicle by way of an installment sales agreement and is unable to honour the debt, the finance house may proceed against either or both parties. Furthermore, any judgment entered into against Mr or Mrs X may be executed against the entire joint estate. In short this means that family heirlooms and the money held in either bank account etc... can all be seized by the sheriff and used to pay the finance house for the car. Hence, if one spouse is reckless with their financial affairs or merely gets into financial trouble, it can and will affect the innocent party. Indeed, if one spouse becomes insolvent the couple can lose everything and as a result, it is imperative that alternative arrangements be made so as to protect your hard earned assets. Although spouses are allowed to have a bank account in their own name, the funds held in these accounts still form part of the joint estate.

With regards to entering into contracts, caution must be exercised since any agreement that one spouse enters into, binds the entire estate. This means that both spouses can sell anything out of the joint estate or make any purchases on behalf of it and it does not require much imagination to realise how disastrous the consequences of this might prove to be. As an example, should John think it a fabulous idea to sell the house or dip into Sally's bank account in order to buy the latest video game console, strictly speaking he would be entitled to do so! As a safeguard against this type of folly, however, the law stipulates that in order to enter into any 'big' contracts the written permission of both spouses is needed. This would include such things as, buying or selling a house, putting a mortgage bond over your property, entering into credit agreements, signing as surety, withdrawing money from your spouse�s bank account, etc... This notwithstanding, a weather eye should be kept with regards to all agreements entered into.

From the above, it is clear that this type of marriage leaves both parties very much exposed to the creditors and the folly of the other. Accordingly, it is probably not the ideal system for any marriage where either or both parties have a business interest at the time of the wedding or who have any desire to begin an entrepreneurial venture sometime in the the future. It will also not be ideal for any person who enters into the marriage with a decent estate in their own name, while Mr or Miss Right, can't find two pennies to rub together. However, should both parties be on an equal financial footing and not have too many assets at the time of marriage and should they not foresee exposing themselves to any major financial risks throughout the subsistence of their partnership, it might prove fitting. Even so, why risk it, when there are better options available?

Upon dissolution of the marriage the entire estate (including the debts) is halved and shared between the parties. The nature of death and divorce being what it is, there is often nothing simple or expeditious about the process, yet we will have to leave that the topic for another article at another time.

The author, and a great many other attorneys I might add, are of the opinion that this is not the ideal matrimonial system to enter into. Although it may have served our grandparents and parents well, the days of working one job until retirement, paying off your house and saving quietly is for most people, a vestige of the past. Consequently marriage in community of property does not cater for the modern lifestyle that most couples pursue these days. If parties do decide to employ this regime, the author suggests that sound and competent legal advice be obtained on how best to protect your assets.


Marriage out of community of property (with accrual) means that during the marriage, each spouse controls their own assets and is responsible for their own debts. They are also free to exclude any property owned by them prior to entering into the marriage such as houses, cars, money etc... The implications of which will be explained below. These marriages are regulated by means of an agreement that is entered into between the parties and is know as an ante-nuptial contract. It is an incredibly important document and really sets out the parameters that the couple wish to apply to their union and can include almost anything they want, there are some exceptions but it is beyond the scope of this article to discuss them. An important feature of the contract is that it is signed before a Notary Public and registered in the deeds registry. Since the contract is not only enforceable against the parties to the agreement but against third parties as well, it must be registered in the deeds registry.

In practice, therefore what occurs is that the couple hand a list of assets and their values to their attorney. The attorney will then list them on the ante-nuptial contract and upon dissolution of the marriage the item or the current value of the item will not form part of the accrual of the estate and will be excluded. Hence, Granny's old Grandfather Clock will be safe from the ravages of the maddening crowd. Furthermore, any other considerations that the couple want included will be conveyed to the lawyer in question. They will then convert those instructions into 'legalese', draw up the contract on the couple's behalf, have it notarised and registered in the deeds registry.

On the dissolution of the marriage the value of each of the partners' assets, obtained during the course of the marriage, is calculated. All the assets and/or their current value, exempted by way of the ante-nuptial contract, are excluded from this sum. As such, if you had a house before the wedding day and excluded it in the ante-nuptial contract, it remains yours and will not be included in the accrual calculation.

The spouse whose estate has grown less than the other�s estate during the course of the marriage will get half the difference between the growths of the respective estates. However, this does not apply to inheritances, donations, legacies and compensation for injury, unless of course the ante-nuptial agreement stipulates that they will be included.

So for example, if spouse X's estate has grown by one Million Rand and spouse Y's estate has grown by R500 000.00. On dissolution, you will take R 500 000.00 from spouse X, divide it in half and give R 250 000.00 to spouse Y, leaving both with R750, 000.00. In theory this may sound easy enough yet the calculation of each of the respective spouse's accrual is often a cause of fierce and aggressive debate at the end of a marriage.
For the sake of brevity I shall simply list the most important aspects of the system below: · Creditors of one spouse cannot attach the other spouse�s separate estate. · Spouses are liable for their own debts. · Spouses are free to start a business, sign surety or borrow money without fear of risking the estate. Spouses can lend money to each other from their respective estates. · No permission is needed to enter into contracts. · Each spouse is free to do as they want with their assets. · There is equal sharing of the growth of the spouses� estates during the marriage, but no sharing what the other spouse brought into the marriage; that is what he or she owned at the time of the marriage. · One spouse can leave the marriage with a large amount of money and a large estate while the other leaves with a smaller amount and smaller estate.


This is usually the system that people who are already both very wealthy before they get married, use to protect themselves and their assets. It too is regulated by way of ante-nuptial contract and in this system; no assets are shared at all. Upon dissolution of the marriage, each spouse walks out with what they have and has no claim against the estate of their partner.

· Spouses do not share their assets and on the dissolution of the estate, they get the whole estate.

· They are each responsible for their own debts and each partner�s creditors cannot attach the other spouse�s estate.

· If one spouse is unemployed and is financially dependent on their spouse, upon dissolution of the marriage, they will not be entitled to any property from his or her share, and may get only spousal maintenance.

It is the author's view that these two models provide far greater security for the couple and caters well for those who are involved in, or hope to start a business venture. It protects the assets of the innocent spouse and should one partner get into financial trouble, although it may put great financial stress on the marriage, it will not leave the family destitute. Once again, this is not a one size fits all business, so obtain competent legal advice.

That then, is a skin deep synopsis of the marital systems that we in South Africa employ. I trust that it may be a useful starting point for couples looking to get married and that I have created enough awareness for them to ensure that they seek competent legal advice so as to make the best choice for the type of lifestyle, they wish to pursue. Once this dry and dusty business is concluded, they can go about fitting dresses, choosing weddings cakes and drinking champagne. Who knows but one day they raise a glass to an obscure attorney who took the time to start them on their way to a legally secure marriage.

This article is intended and presented as a general discussion on the law for the general interest of the public. It should not in any way be used as an alternative to obtaining competent legal advice, nor is it intended to be presented as such. Should any person wish to discuss any legal issues with the author hereof, they are welcome to contact him at:

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Name: Jabu
Comment: Hi I have jst got married in church but we haven't signed any marriage contract,so we would like to here from that as its stand we not yet legaly married,who do we suppose to see for the legilizing our marriage

Name: Munyadziwa
Comment: I need to know more about civil contract

Name: Thobela
Comment: Which type of marriage is the best for people who are married for the first time?

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Name: _
Comment: Very good info. Lucky me I ran across your blog by chance (stumbleupon). I've saved it for later!

Name: Ian Clarke
Comment: Hi Jabu. In terms of the Marriages Act, your marriage must be officiated over by a Marriage Officer. I would suggest that you speak to your Church Minister and ask him whether he is one. If he is, he should have lodged your marriage certificate with the Department of Homes Affairs. Since you have not signed an Ante-Nuptial contract, your marriage will be registered as being in community of property.

Name: Ian Clarke
Comment: Hi Thobela. It depends on the plans you have for your life together and what assets you and your future spouse have. Please feel free to contact me personally and we can discuss this further. Name: Ian Clarke
Comment: Hi Munyadziwa. Civil Contract covers a large spectrum of the law. Please you could be more specific with your request. Alternatively, please send me an e-mail and I will respond to you.

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Name: Pkay
Comment: I would like to get married out of community of property, how much does it costs to set up the contract.

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