This article will provide a brief insight on 3 (three) different types of marital regimes and its effect on the buying and selling of property.
MARRIED IN COMMUNITY OF PROPERTY
The first and most common type of marriage is a marriage in community of property. This type of marital regime means that you and your spouse become one, not only by means of marriage but also in all the transactions you enter into. Any assets acquired and any debt incurred before and during the marriage forms part of the joint estate.
This type of marriage is registered as a civil marriage with the Department of Home Affairs.
Therefore, in certain instances, you require your spouses consent when entering into certain transactions. When purchasing or selling property, both spouses must consent thereto and sign the relevant documents together to give effect to the sale.
If the property is being sold, each spouse will be entitled to their 50% share of the proceeds of sale of the property, unless agreed otherwise.
MARRIED OUT OF COMMUNITY OF PROPERTY
There are two types of marriages out of community of property – one known as married out of community of property without accrual and the other known as married out of community with accrual. Both of these marital regimes have to be registered by means of an Antenuptial Contract before a Notary Public.
Married out of community of property without accrual
This type of marital regime means that each spouse retains their estate. In other words, the assets each spouse acquires and debt they incur before and during the marriage remains their own as individuals.
Spouses married according to this type of marital regime do not need the consent of the other spouse to enter into any transaction, that includes the buying or selling of immovable property.
If a spouse, married according to this marital regime, decides to sell his or her immovable property to which he or she is 100% owner, such spouse will be entitled to 100% of the proceeds of sale. The other spouse will not be entitled to anything unless he or she is part owner, for example, where both spouses own 50% of the property.
Married out of community of property with accrual
This type of marital regime is similar to a marriage out of community of property without accrual. It has the same principle when buying and selling property as explained above.
However, when a marriage in terms of this marital regime dissolves by means of divorce or death, a calculation is done to determine the accrued value of each spouse’s estate during the duration of the marriage. The spouse whose estate has grown the most in value is required to pay the spouse whose estate is lesser in value a portion of the difference (determined by the calculation – please consult a legal professional to explain this further).
Therefore, if you are married according to this marital regime and you sell or buy immovable property, it will either increase or decrease your accrual and can have an impact when your marriage is dissolved. In other words, your spouse may be entitled to a share of the proceeds of sale when the marriage is dissolved.
MARRIED ACCORDING TO MUSLIM RITES
Many people often get confused with this marital regime due to the lack of law and regulations surrounding it and fail to insert it on documents.
A common mistake made is that people cite a marriage according to Muslim rites as ‘unmarried’. To date, our law does not legally recognise marriages according to Muslim rites or Islamic rites. However, it is still important to cite your specific marriage no matter if it is legally recognised or not.
Some may even confuse this type of marital regime with a marriage out of community of property, due to it being similar when it comes to buying and selling property in that one party may enter into the agreement of sale without the other party.
If you are married according to Muslim or Islamic rites, your correct marital status must be disclosed and inserted on your documents, such as the offer to purchase when buying or selling immovable property.
The above is not an exclusive list of all the types of marriages in South Africa but the most common. Examples of other types of marriages in South Africa, includes but is not limited to, Civil Unions, Customary Marriages, Foreign Marriages, etc. Please ensure that you disclose your marital status when signing any type of documents, especially when selling or buying immovable property. It can have a great impact on any transaction, as documents will have to be registered reflecting the current marital status.