By
Ridwaan Desai,
Attorney Conveyancer and Notary Public,
practising as Desai and Associates
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MARRIAGE OUT OF COMMUNITY OF PROPERTY
If
you're married out of community of property without the
accrual system (ANC), your respective assets and liabilities
are kept separate. So, its largely a case of 'what's mine
is mine, and what's your is yours'. You are not liable for
any debts of your spouse, unless the debt was incurred buying
necessities for the joint household, such as food, clothing,
medical bills, electricity bills and so on, in which case
both of you are liable.
Each
of you retains your own property if you get divorced. If
your spouse dies, you keep your own property. His property
will either be distributed according to his Will, or the
laws of South African intestate succession if there was
no will.
While
this has the advantage that your estate is not at risk if
your spouse suffers a financial setback, it can operate
unfairly against a wife who forfeits earning an income for
years while she stays at home to raise small children. However,
it should be noted that this is the Islamic way of marriage.
It is unfortunate that we live in a society where Islamic
Laws are not taken into consideration, hence we need to
ensure that we follow the Islamic way where ever we can.
Marriage
out of community of property, subject to the accrual system
The accrual system works in the following way: While you
are still married, your assets and liabilities are kept
separate and are administered separately. When the marriage
is dissolved, whether by divorce or death, there is a sharing
of profits and loses, similar to a marriage in community
of property.
On
dissolution of the marriage, the accrual of the respective
estates is calculated. If your estate shows the smaller
accrual, you can claim for half of the difference between
the two accruals. Effectively, this means that the total
net increase in both estates is added up and divided equally.
You
are both free to exclude certain assets from the calculation
of the accrual, such as separate property that you may have
acquired before the marriage. To do this you have to value
the property when you get married and state what your estate
is worth at the start of the marriage.
Example:
Husband
Wife
Estate on date of marriage (excluded) R100 000 R50 000
Estate on divorce / death (Accrual) R500 000 R250 000
Accrual R400 000 R200 000
Total accrual of R600 000, of which each spouse gets R 300
000; therefore husband (or his estate if he is dead) has
to pay wife R100 000.
The advantage of this system is that both of you are protected
against the financial losses of the other during the marriage.
On termination of the marriage, both of your contributions
to the marriage are recognised in that you have an equal
share in proprietary gains made during the marriage.
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Column: Questions and Answers on Marriages
For any queries/questions please e-mail: legal@desaiattorneys.co.za