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Marriage Contracts

Community of Property

The main features of this type of marriage contract are : In a marriage in community of property, all assets/liabilities are pooled and shared equally, irrespective of whether such assets were acquired before or during marriage, unless expressly excluded by a donor or testator. All profits and losses are borne equally. The husband used to enjoy marital power over his wife. This is no longer the case. The husband and wife now have joint control over the joint estate. Contract affecting the assets of the joint estate must be concluded by both parties. Marriages in community of property are governed by our common law. In the absence of an agreement to the contrary, like an ante nuptial contract, all marriages are concluded on this basis.

Marriage out of community of property:

The principle features of this marriage contract are: Each spouse retains his or her own assets and liabilities whether acquired before or during marriage. There is no sharing of profits and losses. Both spouses have full and independent contractual capacity. Upon death or divorce, each spouse keeps control over their own assets. A divorce court may of course order the distribution of the matrimonial property along equitable lines. The marriage is governed by a contract known as an ante nuptial contract which is concluded by the parties before the marriage. If the marriage occurred after 1 November 1984, the contract had to specifically exclude the system of accrual. In the absence of this exclusion the rules of accrual will automatically apply.

Marriages out of community of property with accrual:

This type of marriage is also governed by an ante nuptial contract but it includes the sharing of growth in the spouses assets during marriage. The growth in the assets accumulated by both spouses during the marriage must automatically be divided equally when the marriage dissolves on death or prior divorce. The value of each spouse’s assets is determined at the commencement of the marriage. On termination either by death or divorce the exercise is repeated and the difference in the growth of the two estates is calculated after allowing for inflation. The rate of inflation to be used is that based on a weighted average of the consumer price index as published in the Government Gazette from time to time. The spouse whose estate has shown the least growth will be entitled to claim half the difference in the value of growth between the two estates from the other spouse.