What are your property rights after marriage?

What are your property rights after marriage?

Private Property South Africa
Sarah-Jane Meyer

The contractual side of getting married may not be particularly romantic, but it can have far-reaching consequences on your future. So, it should definitely be a part of your discussions before you tie the knot.

For most people, property is the most valuable asset they will ever own – whether married or single. However, property ownership is not always shared equally if you are married. The detail will depend on your marital contract. It is also influenced by whether you acquired the property before or after marriage.

Quite often, one or both spouses already own property before marrying each other. You and your future spouse may also own property together before you marry and have a contract in place to define your ownership rights and responsibilities.

However, this contract may be nullified by a marriage contract, so you shouldn’t assume the same agreement will apply once you are married.

Marriage contracts

The type of marriage contract you choose determines the management of asset ownership during the marriage and in the event of death or divorce.

In South Africa, the default marriage contract is in community of property (ICoP). This means that if you don’t have an ante-nuptial contract (ANC) drawn up and signed before your wedding, the ICoP contract will govern your marriage – and any division of assets.

When you marry in community of property, you and your spouse agree to equally share all assets acquired during your marriage as well as assets acquired by both of you before your marriage. This means both of you will be equal and joint owners of any property bought before or after your marriage - regardless of whose name is on the title deed. In addition, you will both need to give written consent for any future property sales or purchases made throughout the term of the marriage.

Accrual

These days it is more common to be married in terms of an antenuptial contract - with or without accrual.

With an ante-nuptial contract with accrual, any assets accrued (bought or earned) during the marriage will be divided equally between the two of you if your marriage ends for any reason.

This means that any property bought after your marriage is considered jointly-owned in the event of death or divorce - unless it has been specifically excluded in the contract.

However, any assets bought or earned before the marriage – including fixed property – will belong solely to the original owner. Therefore, if you and your future spouse jointly own a property before marriage, you should specify the original division of ownership in your ante-nuptial agreement. That way, if the marriage should end, each of you will retain the shares agreed upon when you first bought the property.

In general

In marriage by antenuptial contract without accrual, the spouses don’t share ownership of any assets – either marital or pre-marital. In this case, whichever spouse bought the property owns the property. However, matters can get a little complicated if both of you contribute to the ownership costs, for example, mortgage payments, renovations or maintenance expenses.

Marriages by antenuptial contract - with or without accrual – don’t require both spouses to give consent for property purchases or sales. This is because all property is individually owned until the marriage is dissolved when the assets will be divided according whichever agreement is in place.

The choice of a marriage contract is a personal thing, and there is no ‘one size fits all’. This is why it’s essential for both of you to consider all options to find the best solution for you.

Although off-the-shelf marriage contracts are available, it’s usually best to consult a lawyer before taking such an important step. Above all, be honest about your hopes and expectations.

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