Your marriage contract and how it impacts buying a home.
In light of Valentine's Day being around the corner, love is surely in the air. And what beats getting married and buying a home together with your spouse? Both are very special moments in any individual's life. Both events come with contracts, and it is important to have a thorough understanding of which contract you are entering into and how it works.
First things first - what are the various types of marriage contracts in South Africa? There are four main contracts, namely: In Community of Property, Out of Community of Property, According to Customary Law or Muslim Rites and lastly According to Laws of a Foreign Country. Let us take a closer look at each to gain a more in-depth understanding with regards to what they entail.
In Community of Property
This is the oldest marriage contract and basically means - What's mine is yours and what's yours is mine, and this is at the centre of this marriage contract. With regards to purchasing a home together, this ultimately means that the home will be registered in both of your names. Furthermore, this means that you will also not be able to sell this home without the obtaining consent from your spouse first.
What could possibly be problematic about this marriage contract is that if one or both members are in business and they are then sequestrated by his/her creditors, the creditors take control of the entire estate and if one of the members are innocent, they unfortunately will lose all their assets as well.
Out of Community of Property
This contract is also known as an Ante-Nuptial Contract or an ANC. These contracts aim to protect all the assets going into a marriage. With this contract you are also at liberty to purchase property on your own and do not need the consent of your spouse when doing so. You are however also able to purchase property together and when doing so you will need the consent of your spouse when selling said property again. An Ante-Nuptial contract can also vary - it can either include or exclude the accrual system. This simply means that should your ANC be without accrual, that your estates remain separate and should it include accrual, that your estates will be joined after the marriage date.
According to Customary Law or Muslim Rites
Marriages under Muslim Rites will only be considered valid when the marriage is solemnized by a marriage officer that is authorised and registered as a marriage office in terms of the South African Marriage Act.
According to the laws of a Foreign Country
Should you be married under any other law outside of the South African law you will be able to buy property separately or joint. There is however a snag... when wishing to sell your property, even if it was bought separately both spouses will need to be present and assist each other until the transfer has been concluded.
Irrespective of the type of marriage contract that you and your loved one have, owning a property separately or together provides financial security for your household. This is a very simple and brief explanation of the affects that your marriage contract will have when buying a property, for a more thorough explanation please speak to your property practitioner or your lawyer.
