Marriage and Property Systems in South Africa

Property System in South Africa

• The default property system in South Africa is in community of property, which means that the spouses' assets and liabilities are merged into a joint estate.

Patrimonial Consequences of Civil Marriages and Civil Unions

• The patrimonial consequences of civil marriages and civil unions in South Africa are governed by the Matrimonial Property Act 88 of 1984.

Presumption of Community of Property

• The presumption of community of property can be rebutted if the spouses enter into an antenuptial contract (a contract entered into before marriage) that excludes community of property.

Legal Nature of Ownership of Joint Property

• In a marriage in community of property, the joint estate is owned by both spouses in undivided shares, meaning that each spouse has a half-share in the joint estate.

Assets Excluded from Joint Estate

• The following assets are excluded from the joint estate in a marriage in community of property:
  • Assets acquired by one spouse before the marriage
  • Assets acquired by one spouse through inheritance or donation
  • Assets specifically excluded by an antenuptial contract

Recovery of Joint Debts

• Joint debts in a marriage in community of property can be recovered from the separate estates of both spouses and the joint estate.

Order of Recovery for Delictual Debts

• The order of recovery for delictual debts (debts arising from damages or injuries) in a marriage in community of property is:
  1. Joint estate
  2. Separate estate of the spouse responsible for the debt
  3. Separate estate of the other spouse