Our legal system recognises three types of matrimonial property regimes
COMMUNITY OF PROPERTY (“COP”)
Community of Property is the system of joint control and an equal sharing upon dissolution of the marriage. It is the ordinary common law in South Africa and it automatically applies to all marriages (including customary marriages), unless expressly excluded by the parties by means of an Ante-Nuptial Contract (“ANC”).
It is to be noted that an ANC is a formal contract which must be signed and executed by the parties in front of a Notary Public before they are married. The ANC must be lodged in the Deeds Office for registration, in the area in which the parties are domiciled or reside. The actual registration thereof may only occur after the marriage has been solemnised.
Community of Property entails that all assets and liabilities of the spouses acquired prior and post their marriage are legally united in one estate (“the joint estate”) which generally speaking, are divided in equal shares upon dissolution of the marriage.
All debts incurred by either spouse prior to or during the marriage can be recovered from the joint estate as the parties are co-owners of the joint estate. Therefore, they are liable jointly and severally for the debts of either of them and execution may be levied against the joint estate for recovery of the debt due to a creditor.
OUT OF COMMUNITY OF PROPERTY WITHOUT ACCRUAL (“OCOP”)
Out of community of property without accrual refers to complete separation of property without any sharing upon dissolution of the marriage i.e. without the accrual system. It is the system where an ANC has been properly executed and registered as aforementioned and where such ANC expressly excludes the provision of the Accrual System as referred to in the Matrimonial Property Act. Each of the parties has control over their own separate estates.
Where parties are married OCOP each party has their own rights and obligations and generally speaking one spouse is not liable for the debts of the other nor can the assets of one spouse be attached in execution or used to satisfy the debts of the other spouse.
OUT OF COMMUNITY OF WITH THE ACCRUAL
Out of community of property with the accrual refers to the regime where there is some sharing upon dissolution. The accrual system applies to all marriages, entered into OCOP with an ANC after 1 November 1984 and in respect of black persons, after 2 December 1988 unless the accrual is expressly excluded by the ANC.
Accrual comes into effect upon dissolution of a marriage either by death or divorce. There is no accrual if the net value of the estate at dissolution of marriage is less than the net value at the commencement of the marriage.
An Antenuptial Contract is drafted naming and placing a value on the assets named therein and also provides for a commencement value in respect of each spouse. The listed items are excluded when the accrued value is calculated on the dissolution of the marriage and the commencement value is used to calculate the value of a spouse’s estate at the time of the dissolution.