Marriage in community of property is the default matrimonial property regime in South Africa. If you marry without first signing and registering an antenuptial contract (ANC) with a Notary Public, the law automatically places you in this regime. No paperwork is needed — and that is precisely the problem. Many couples fall into it simply because they did not know they had a choice, or because they ran out of time before the wedding.
The fundamental principle is total merger: on the day of your marriage, your separate estates cease to exist. Everything you own and everything your spouse owns — assets acquired before the marriage, assets acquired during the marriage, debts incurred before the marriage, and debts incurred during the marriage — merges into a single joint estate. Both spouses own an undivided half-share of this joint estate.
The critical consequence: In a marriage in community of property, there is no distinction between "your" assets and "their" assets. There is only "our" estate. If your spouse runs up R500,000 in business debts, those debts become debts of the joint estate — and creditors can seize your salary, savings, car, and share of the house to satisfy them. You have no legal wall of protection.This regime is governed by Chapter III of the Matrimonial Property Act 88 of 1984, which abolished the old marital power (which previously gave husbands sole control over the joint estate) and established equal powers for both spouses in the administration of the joint estate.
Almost everything merges into the joint estate. This includes:
There are limited exceptions — assets that do not form part of the joint estate even in a marriage in community of property:
A common misconception: Many people believe that only assets acquired "during the marriage" are shared. This is incorrect. In a community of property, premarital assets also merge. If you own a house worth R2,000,000 before the wedding and your spouse has R200,000 in student debt, both the house and the debt become part of the joint estate the moment you sign the marriage register.
Because the joint estate belongs to both spouses equally, the Matrimonial Property Act imposes strict requirements on what each spouse can and cannot do without the other's consent. Section 15 of the Act sets out a tiered consent system.
Under Section 15(2), a spouse may not do the following without the other spouse's written consent:
| Transaction | Consent Required |
|---|---|
| Sell, mortgage, or burden immovable property (house, land, farm) | Written consent + 2 witnesses |
| Enter into a credit agreement under the National Credit Act | Written consent + 2 witnesses |
| Enter into a contract to buy land under the Alienation of Land Act | Written consent + 2 witnesses |
| Sell or pledge investments held for investment purposes (shares, art, jewellery, coins) | Written consent |
| Cede or pledge insurance policies, mortgage bonds, or fixed deposits | Written consent |
| Withdraw money from the other spouse's bank account | Written consent |
| Sign a deed of suretyship (guaranteeing someone else's debt) | Written consent* |
* Exception: If the suretyship is in the ordinary course of the spouse's business, trade, or profession, no consent is required (Section 15(6)), as confirmed in Ockie Strydom v Engen Petroleum (2012) SCA.
Under Section 15(3), a spouse may not donate from the joint estate where the donation unreasonably prejudices the other spouse's interests — such as giving away furniture from the common household or making substantial gifts to third parties without consent.
Section 15(9) addresses this scenario in two ways. If the third party did not know (and could not reasonably have known) that consent was required, the transaction is deemed valid — the innocent third party is protected, as confirmed in Vukeya v Ntshane 2022 (2) SA 452 (SCA). However, when the joint estate is divided on divorce or death, the court can adjust the division to compensate the innocent spouse for any loss suffered.If a spouse unreasonably withholds consent, the other spouse can apply to the court under Section 16 for permission to proceed without consent.
Under Section 17, a spouse married in community of property cannot institute or defend legal proceedings without the other spouse's written consent, except for proceedings to protect personal rights, proceedings between the spouses themselves, and proceedings in the ordinary course of business.
The practical burden: These consent requirements create significant friction in daily financial life. Every major financial decision — buying property, taking out a loan, applying for credit, signing a surety — requires your spouse's involvement and signature. If your relationship is strained or your spouse is uncooperative, your financial life can be paralysed.
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All debts — including debts your spouse incurs without your knowledge — become debts of the joint estate. If your spouse defaults on a business loan, creditors can claim against your assets, your salary, and your savings.
If one spouse is declared insolvent, both spouses are effectively insolvent — because there is only one joint estate. Your assets, your career, your credit record — all affected by your spouse's financial decisions.
If your spouse's business fails, creditors can pursue the joint estate, including your personal assets. You cannot protect your salary or savings from your spouse's business creditors.
Major transactions require spousal consent. If your relationship deteriorates, your spouse can effectively block you from selling property, taking credit, or defending a lawsuit — paralysing your financial life.
Spouses married in community of property generally cannot sue each other for financial damages, because money taken from the joint estate to pay one spouse simply falls back into the same joint estate.
On death, the joint estate must first be divided before the deceased's half can be distributed to heirs. This adds complexity, time, and cost to estate administration — and may delay the surviving spouse's access to funds.
Insolvency risk is the single most compelling reason legal professionals advise against marriage in community of property. When one spouse becomes insolvent (cannot pay their debts), both spouses are effectively declared insolvent — because there is only one joint estate, and the Insolvency Act applies to the entire estate. Insolvency ScenarioThabo is an entrepreneur. Naledi is a teacher. They are married in community of property. Thabo's business fails.
| Asset | In Whose Name | Value |
|---|---|---|
| Family home | Both names | R2,500,000 |
| Naledi's savings (from her salary) | Naledi | R380,000 |
| Naledi's vehicle | Naledi | R250,000 |
| Thabo's business debts | Thabo | (R1,800,000) |
The reality: Despite Naledi never having been involved in Thabo's business, the family home, her savings, and her vehicle are all part of the joint estate. The business creditors can claim against all of these assets. If Thabo is sequestrated, Naledi loses her home, her savings, and her vehicle — even though she had nothing to do with the business.
If they had signed an ANC: In a marriage out of community of property (with or without accrual), Naledi's savings and vehicle would be in her separate estate, untouchable by Thabo's creditors. The family home, if registered in Naledi's name, would also be protected.The insolvency consequences extend beyond the immediate financial loss. Both spouses may be blacklisted on credit bureaus, making it difficult to obtain credit, open bank accounts, or even rent property for years after the sequestration is discharged.
Section 20 — Emergency Protection: If a spouse's conduct is seriously prejudicing the other spouse's interest in the joint estate, Section 20 of the Matrimonial Property Act allows the prejudiced spouse to apply to the High Court for an order for the immediate division of the joint estate. However, this is an expensive, time-consuming legal process — not a quick fix. Prevention through an ANC is always better than litigation.
On divorce, the joint estate is divided equally — 50/50. Each spouse receives half of the net value of the joint estate (total assets minus total debts), regardless of who contributed what during the marriage. Divorce — Division of the Joint Estate
| Item | Value |
|---|---|
| Family home | R3,200,000 |
| Spouse A's retirement fund | R1,400,000 |
| Spouse B's savings | R600,000 |
| Vehicles (combined) | R800,000 |
| Outstanding bond | (R1,200,000) |
| Credit card debt | (R80,000) |
| Net joint estate | R4,720,000 |
Each spouse receives: R4,720,000 ÷ 2 = R2,360,000 — regardless of who earned what, who brought what into the marriage, or who incurred the debts.
In some circumstances, the court may order a forfeiture of patrimonial benefits under Section 9(1) of the Divorce Act. This means the court can order that one spouse forfeit some or all of the benefits they would otherwise receive from the marriage. This is typically ordered when one spouse was guilty of misconduct, when the marriage was of short duration, or when one spouse would be unduly benefited by the equal division, given their conduct during the marriage.
Spouses are free to negotiate a settlement agreement (consent paper) that divides the joint estate on terms they both agree to — this does not have to be an exact 50/50 split. The settlement agreement is made an order of the court when the decree of divorce is granted. Many divorces are resolved through negotiation or mediation rather than contested litigation.
When one spouse dies in a marriage in community of property, the following process applies:
The surviving spouse is entitled to their 50% half-share of the net joint estate. This half belongs to the surviving spouse as of right — it is not an inheritance and is not subject to estate duty.
The remaining 50% forms the deceased's estate and is distributed according to their will (or the Intestate Succession Act if there is no will). The executor must first settle all debts of the deceased estate — including funeral costs and estate duty — before distributing to heirs.
Estate duty is calculated only on the deceased's 50% share, not on the full joint estate. The surviving spouse's half-share is not subject to estate duty. Additionally, any assets bequeathed to the surviving spouse are exempt from estate duty under Section 4(q) of the Estate Duty Act.
Critical limitation on wills: Because each spouse only owns an undivided half-share of the joint estate, you can only bequeath your 50% in your will. You cannot dispose of the entire joint estate — the other 50% belongs to the surviving spouse. Many couples mistakenly draft wills that purport to deal with the entire estate, which creates complications during administration.
Delay in accessing funds: The administration of a deceased estate in community of property is more complex than in a marriage out of community of property. The executor must first determine the full extent of the joint estate, settle all debts, and divide the estate before the surviving spouse can access their share. This can take months, during which the surviving spouse may have limited access to bank accounts and other assets.
| Feature | In Community ★ | With Accrual | Without Accrual |
|---|---|---|---|
| Legal document | None needed (default) | Notarial ANC | Notarial ANC |
| Cost to set up | R0 | R1,950 | R1,950 |
| Asset ownership | One joint estate — 50/50 | Two separate estates | Two separate estates |
| Pre-marital assets | Merge into a joint estate | Remain separate (protected by commencement value) | Remain separate |
| Debt liability | Jointly liable for ALL debts | Individually protected | Individually protected |
| Consent needed | Extensive consent requirements (Section 15) | Full autonomy | Full autonomy |
| Insolvency risk | Both spouses affected | Only the insolvent spouse | Only the insolvent spouse |
| Sharing at divorce | 50/50 of the entire joint estate | Sharing of growth only | No automatic sharing |
| Business protection | None — spouse fully exposed | Full protection during marriage | Full protection |
| Estate on death | Complex — joint estate must be divided first | Simpler — separate estates | Simplest — separate estates |
| Best suited for | Very few couples. High-risk | Most couples | Second marriages, older couples |
If you are already married in community of property and wish to change to a marriage out of community of property (with or without accrual), this is possible — but it requires a court application under Section 21 of the Matrimonial Property Act.
Both spouses must consent to the change. The court must be satisfied of three things:
A Section 21 application is made to the High Court. The process typically involves drafting a founding affidavit explaining the reasons for the change, publishing notice to creditors in the Government Gazette and a local newspaper, allowing creditors a period to object, obtaining a court order authorising the change, and then executing and registering a notarial contract (the postnuptial contract) that establishes the new regime.
A postnuptial contract application typically costs between R15,000 and R25,000 (including legal fees, court fees, and publication costs) and takes 3 to 5 months to complete. This is significantly more expensive than an antenuptial contract, which costs R1,950 and is completed in days.
The lesson: It is always cheaper, faster, and simpler to sign an antenuptial contract before the wedding than to change your regime afterwards. If you are engaged and reading this page, you still have time to make the right choice. As of 3 April 2024, the Judicial Matters Amendment Act 15 of 2023 amended Section 21, streamlining certain aspects of the postnuptial process. However, the core requirements of a court application and creditor notification remain in place.
