We married without knowing about antenuptial contracts. Are we stuck?
No. You can apply to the High Court under Section 21 of the Matrimonial Property Act to change your marital property regime. Both spouses must agree, and the court must be satisfied that the change is justified and will not prejudice creditors.
The process costs R15,000–R25,000 and takes 3–5 months. Contact us for guidance on whether a postnuptial contract application is appropriate for your circumstances.
Can my spouse take out a loan without my consent?
It depends on the type of credit. Under Section 15(2)(f) of the Matrimonial Property Act, your spouse cannot enter into a credit agreement as defined in the National Credit Act without your written consent (signed by two witnesses).
If my spouse's business fails, can creditors take my salary?
Yes. In a marriage in community of property, your salary forms part of the joint estate. If your spouse's business debts are debts of the joint estate, creditors can claim against all assets of the joint estate — including your salary. This is one of the most important reasons why business owners should never be married in community of property.
Can I protect my inheritance from the joint estate?
Only if the person who left you the inheritance (the testator) specifically stated in their will that the inheritance must be excluded from any joint estate. If the will is silent on this point, the inheritance falls into the joint estate and becomes shared property. If you expect to receive an inheritance, you should ask the testator to include a specific exclusion clause in their will.
What if my spouse refuses to consent to selling our house?
If your spouse unreasonably withholds consent, you can apply to the court under Section 16 of the Matrimonial Property Act for permission to proceed without consent.
The court will only grant this if it is satisfied that the consent is being withheld unreasonably. This adds time, cost, and legal complexity to what should be a straightforward transaction. In a marriage out of community of property, if the house is in your name, no spousal consent is required.
Can I sue my spouse for wasting joint estate money?
Generally, no. Spouses in community of property cannot sue each other for financial (patrimonial) damages because both the claim and the payment would affect the same joint estate. However, there are two remedies: you can apply under Section 20 for an immediate division of the joint estate if your spouse's conduct is seriously prejudicing your interests, or the court can make an adjustment to the division on divorce to compensate you for assets your spouse wasted.
Does marriage in community of property affect my credit score?
Indirectly, yes. While each spouse maintains their own credit record, lenders consider your marital property regime when assessing applications. If your spouse has poor credit or high debt, it affects the joint estate and may affect your ability to obtain credit. If your spouse is sequestrated, this will directly affect your credit standing. In a marriage out of community of property, your spouse's credit profile is entirely separate from yours.
Is marriage in community of property ever a good choice?
In limited circumstances, it can work — primarily for couples where neither spouse has significant pre-marital assets or debts, neither spouse runs a business or plans to, both spouses are employed with stable incomes and low debt, and both spouses genuinely want complete financial integration.
However, even in these situations, a marriage out of community of property with the accrual system achieves almost the same result (fair sharing of growth) while providing critical debt protection. For R1,950, ANC protection is always worth the investment.
Does a customary marriage create community of property?
Yes. Under the Recognition of Customary Marriages Act 120 of 1998, a customary marriage creates a joint estate in community of property unless the parties have entered into an antenuptial contract. If a customary marriage is later followed by a civil marriage, the interplay between the two can create complex property issues — as illustrated in the 2024 JRM v VVC case in the High Court, where the court examined how an ANC signed between a customary and civil marriage affected existing joint estate rights. Professional advice is essential in these situations.
