If you are planning to get married, we advise you (as do attorneys throughout South Africa) not to do so in community of property. This is because there are many disadvantages of being married in community of property.
Disadvantages of being married in community of property
We realise that this advice can be seen as taking a very hard-headed sceptical approach to marriage. However, community of property arrangements are not advisable for various reasons. They can result in the unfair distribution of the couple’s assets in the event of divorce. Also, this arrangement can seriously affect the innocent party if one of the spouse’s business is declared bankrupt or if he or she simply runs up huge debts.
If a couple is married in community of property, all their assets can be seized by a court order to pay the creditors the money owing to them, even though the one partner may have had no connection with the business or had been in no way involved in running up the other individual’s too large debts. With ante nuptial contracts, only the one partner’s assets can be seized, the other partner’s assets remain untouchable.
A further disadvantage of community of property marriages is that if the spouse happens to die intestate, the surviving spouse will be given only half the assets, the other half automatically being set aside for the dependents (in most cases usually the children or in the absence of children the nearest relations).
Although there are also disadvantages associated with being married out of community of property, we believe that the disadvantages associated with being married in community outweigh the disadvantages of being married out of community.
If you are engaged or considering marriage, and feel that you need more information in making decisions as to the legal consequences of your marriage, please do not hesitate to contact us at [email protected].
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