Half is yours, half is mine! Although this is a very popular form of marriage, parties must always ensure that they are familiar with the advantages as well as disadvantages of choosing this marriage regime.

If an antenuptial contract is not signed before the marriage, then the marriage is automatically in community of property.

Once married you have only one estate. Everything is thrown into one pool! Nothing is outside of the pool. Thats one way of obtaining assets (or debts) without working for it. She can now do with your assets whatever she likes, however, sometimes you have to sign, (goes for both parties).

Even though you may have your own bank accounts in your own names, there is no such thing as lending money to one another and giving it back. Everything she earns is yours and vice versa. All loans is both hers and his. Couples married in community manage the one joint estate together. This means that either party can, subject to certain safeguards, enter into transactions involving the commonly owned property. They are some acts that one spouse may not perform without the written consent of the other. The principal ones are:

Selling your house or taking a bond over it (mortgaging) or granting a servitude over land;

Entering into a contract to alienate, mortgage or grant a servitude (such as a right of way) over land;

Alienating or pledging investments such as shares, stock, insurance policies, mortgage bonds, fixed deposits or similar assets;

Alienating or pledging jewellery, coins, stamps, paintings or other assets mainly held as investments;

Withdrawing money in the name of the other spouse at any financial institution;

As buyer or lessee, entering into a credit agreement or leasing transaction to which the Credit Agreements Act, 1980 applies;

As purchaser, entering into a contract to which the Alienation of Land Act, 1981 applies;

Binding him or herself as surety.

Although certain acts may not be performed by one spouse without the consent of the other, permission need not always be in writing. Such instances include:

Disposing of or pledging household furniture or other effects;

Receiving money due as remuneration, earnings, bonus, allowance, royalty, pension, damages for loss of income, inheritance, donation, bursary or prize, income from the separate property of the other, dividends or interest on all the proceeds of shares or investments in the other's name, the proceeds of any insurance policy or annuity in favour of the other spouse;

Donating an asset of the joint estate or disposing of it without value.

A spouse married in community of property needs the written consent of the other spouse to institute or defend legal proceedings against a third person, except:

In respect of the separate property of either spouse;

For recovery of damages other than for financial loss caused by a delict;

In respect of a matter relating to his or her profession, trade or business.

If a spouse withholds consent or for any other reason consent cannot be obtained, the other spouse may apply to the relevant High Court for an order dispensing with consent.

Provided the third party did not know and could not reasonably have known of the position, when a spouse acts without consent, the transaction is deemed to have been with the required consent or, as the case may be, the errant spouse is deemed to have been competent to enter into the transaction. However, the latter, where he or she is at fault, will be penalized on a division of the joint estate is the estate has suffered a loss.

Any wife is entitled to buy certain necessaries needed to maintain the joint household. A wife may validly enter into purchases (which are, of course, contracts) whether her husband consents to or authorizes it or not. Bills for household necessaries will have to be settled by the joint estate of the parties. The wife's authority is not limited to the purchase of necessities of life, for example, staple food and basic clothing. The term covers all those contracts that the court may consider reasonable, having regard to the circumstances of the spouses. While the wife of a successful professional man could consider expensive clothing or imported foods to be household necessaries, the wife of a poorly paid person may be limited to little more than the basics of life. The wife's authority extends to the purchase of necessities for everyone in the common household, even if they are not children or relatives.













It is clear that one of the biggest advantages of this form of marriage is that both parties have equal rights to deal with the assets of the estate and also lay claim to the assets in equal shares.

Parties experience financial equality during this form of marriage. Take note that assets can be excluded from the communal estate for example through a will, but your options to do so is very limited under this form of marriage.

One of the biggest disadvantages to this marriage regime also has to do with the financial implications. If one of the parties run into financial difficulty and his/her estate is sequestrated, the other party's estate will also be effectedly sequestrated, because it is one estate after marriage. Furthermore debtors are entitled to claim outstanding debts from both parties due to the fact that thay have one estate. It is strongly recommended to parties that they ensure they understand the effects of signing any documentation such as contracts and/ or surety ships when they are married in community of property. Signing such documentation does not only bind the signatory thereof but also the party who they are married to in community of property.

Where marriages were concluded in terms of customary law after 15 November 2000, such a marriage will be deemed to be within community of property unless the parties have specified in an ante nuptial agreement how their marriage regime will be regulated.

On death or divorce, the marriage will end and the joint estate is divided equally between the two spouses.

Ideal candidates who should consider this marriage contract are if one partner is unable to work or earns a minimal income. When married in community of property, no matter who earns the money and pays for the assets, both are entitled to half the estate. 

Written by Louwrens Koen Thursday, 02 February 2017 Posted in Antenuptial Contracts