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Legality of Marriage

Before the commencement of the Matrimonial Property Act in 1984, there were only two ways in which a man and a woman could be married: marriage in community of property and marriage out of community of property.  After this date, the accrual system was introduced to marriages out of community of property.  Before the marriage the parties must decide whether they want to be married in or out of community of property, since it cannot be done after the marriage without approaching the High Court.


Marriage in Community of Property

When a man and a woman gets married and do not enter into an Ante Nuptial Contract (ANC), their marriage is automatically in community of property.  Thus, each has an undivided half share and each is co-owner of all the assets they have as they enter the marriage.


An amalgamation of each party's separate estate takes place and is forthwith called the communal estate.  All debts and liabilities must be paid from the communal estate.  Both become co-owners of all assets they had before and all assets they acquire after the marriage.  Debts before the marriage also become debts of both parties.  At the dissolution of the marriage, either by death or divorce, debts are firstly paid and then the balance is divided equally.  At the death of one spouse, the surviving spouse inherits his/her half and the other half is normally inherited through a will.  There are certain assets which are excluded from the communal estate for example where the asset was obtained through a bequeathment.  Other assets such as small presents, engagement ring, certain life policies and damages obtained after a delict against one party are also excluded.


The marital power system was abolished and therefore each spouse has equal powers over the communal estate.  Each spouse can enter into legal contracts without the other's permission, although there are certain exceptions such as the withdrawal of investments, donations, credit agreements, pledges and disposal of property.


Application for sequestrations and administrations of one spouse, means both are involved and must be brought by and against both.  Spouses may also give evidence against each other in legal actions in certain circumstances.