Marriage seems to be one of the stages that most people hope to live and go through. The art of getting your better half and tieing the knot is one opportunity of a lifetime. However, some marriages choose not to include their assets in joint agreements, while others opt to put them as a collective aspect. Someone getting married in community of property needs to understand the good and bad side of the agreement.
The idea holds to create a better bond between the married couple as they can communicate and share insights when it comes to their assets and debts. For this type of marriage to be successful, both the participants need to agree. Hence, deciding to get married in community of property should not be forced but done willingly.
Marriage in community of property pros and cons
Being married in the community of property has its advantages and disadvantages:
Advantages of a community of property marriage
Considered as one of the best marriage contracts, it has the following benefits:
- This type of marriage contract tends to help the other spouse if he/she is financially unstable.
- The two also do not have to get into another exclusive agreement before getting married.
- It also promotes the equal generation of ideas in terms of financial, legal matters, and oneness in communication.
Disadvantages of a community of property marriage
- The first basic con is that if the other partner is irresponsible, then the other person is also accountable for his/her behaviour.
- If the other spouse had an unstable reputation, then it will affect the other one also in terms of the added liabilities and debts in the joint estate.
- Some various transactional activities require the consent of the other partner to be processed.
- If one spouse is financially successful, then he/she will have to share the fortune with the other party.
- The management of the joint estate is quite complicated.
- If there is disagreement from either of the spouse, then it will be hard to ask for consent, hence leading to divorce or separation.
About marriage in community of property
Below is everything you need to know about marriage in community of property:
So what does married in community of property mean?
It means that the debts and all the assets before the matrimonial ceremony are shared. The shared assets and liabilities form a joint estate between the spouses. Additionally, the acquired debts, assets, and responsibilities after the marriage become a part of the joint estate. Getting married in South Africa requires the couple to sign an Antenuptial Contract (ANC) before the wedding; otherwise, if not, the couple will be married in community of property by default.
How does in community of property work?
Well, once the process concludes, both the spouses have equal access to the joint estate. The couple has the same ownership in terms of management and disposal of use. For certain transactions to take place, one must require consent from the other spouse. The permission can be either written or unwritten. The only aspect of assets that do not fall into the joint agreement is inheritance.
Can you change from being married in community of property?
It is possible, according to the Matrimonial Property Act, the couple may apply jointly into an ANC to manage their future marital property. The application goes through the court, and if specific requirements of the applicants get a pass, then the proposed change will be processed.
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Essential factors to consider in the community of property marriage
About the married in the community of property will, the assets get divided equally, and the last will inheritance gets excluded. Additionally, any amount of money paid to the person after suffering or pain through a road accident will also fall out of the joint agreement.
According to family law, the Matrimonial Property Act. 88 of 1984, some activities on the joint estate require consent in different forms. Some of the transactions that can occur in the agreement include:
1. Those that do not need consent
- Carrying out a deal in the course of his/her business
- Selling a car or other movable assets
- Getting into an ordinary contract while in his/her business
2. Written consent is required
These operations involve getting the written permission of the other spouse to carry them out.
- Bond application when married in community of property
- Withdrawing money from the other person's account
- Burdening the assets of the joint agreement meant for investment purposes like jewellery, coins
- It may be needed when a spouse alienates insurance policies, shares, stocks belonging to the other person.
3. Informal consent required
If oral communication is sufficient, either of the partners needs uninformed permission for certain activities to occur.
- He/she gets the other spouse's money acquired from donations, allowances, pension, or earnings.
- He/she receives gratitude from their trade, profession, or damages awarded for the loss of income.
- Either of them acquires rent money from rented immovable properties.
4. A written consent requiring two witnesses
When married in community property, some instances need two people as witnesses for the particular transaction to be successful. The two witnesses also co-sign the agreement.
- Signing a contract in the purchase of an immovable property
- Entering a credit agreement according to the National Credit Act 34 of 2005
- You are transferring immovable property belonging to a joint agreement such as a farm or house.
The divorce procedure when married in community of property
This involves certain formalities for the divorce to be successful. The partners may choose to have a consent paper to have a settlement agreement to control the custody of the termination of the joint estate. Furthermore, they can also apply for a matrimonial property regime depending on their circumstances. According to the South African divorce law- married in community of property, the assets are divided equally between the two partners. However, this may not take place immediately when the other spouse claims a forfeiture.
It is essential to agree before being married in community of property for the above pros and cons. It will also provide the foundation for the marriage in terms of estate usage and avoiding manipulation. Both spouses must understand the terms and conditions for them to avoid irregularities. If you want to be the full custodian of your assets, then make up your mind before leaping into this type of marriage contract.