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Marriage out of Community of Property

Mar 17, 2008
 
By Ridwaan Desai,
Attorney Conveyancer and Notary Public,
practising as Desai and Associates

If you're married out of community of property without the accrual system (ANC), your respective assets and liabilities are kept separate. So, its largely a case of 'what's mine is mine, and what's your is yours'. You are not liable for any debts of your spouse, unless the debt was incurred buying necessities for the joint household, such as food, clothing, medical bills, electricity bills and so on, in which case both of you are liable.

Each of you retains your own property if you get divorced. If your spouse dies, you keep your own property. His property will either be distributed according to his Will, or the laws of South African intestate succession if there was no will.

While this has the advantage that your estate is not at risk if your spouse suffers a financial setback, it can operate unfairly against a wife who forfeits earning an income for years while she stays at home to raise small children. However, it should be noted that this is the Islamic way of marriage. It is unfortunate that we live in a society where Islamic Laws are not taken into consideration, hence we need to ensure that we follow the Islamic way where ever we can.

Marriage out of community of property, subject to the accrual system
The accrual system works in the following way: While you are still married, your assets and liabilities are kept separate and are administered separately. When the marriage is dissolved, whether by divorce or death, there is a sharing of profits and loses, similar to a marriage in community of property.

On dissolution of the marriage, the accrual of the respective estates is calculated. If your estate shows the smaller accrual, you can claim for half of the difference between the two accruals. Effectively, this means that the total net increase in both estates is added up and divided equally.

You are both free to exclude certain assets from the calculation of the accrual, such as separate property that you may have acquired before the marriage. To do this you have to value the property when you get married and state what your estate is worth at the start of the marriage.

Example:

Husband Wife
Estate on date of marriage (excluded) R100 000 R50 000
Estate on divorce / death (Accrual) R500 000 R250 000
Accrual R400 000 R200 000

Total accrual of R600 000, of which each spouse gets R 300 000; therefore husband (or his estate if he is dead) has to pay wife R100 000.
The advantage of this system is that both of you are protected against the financial losses of the other during the marriage. On termination of the marriage, both of your contributions to the marriage are recognised in that you have an equal share in proprietary gains made during the marriage.

Next Column: Questions and Answers on Marriages
For any queries/questions please e-mail: legal@desaiattorneys.co.za

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