Marriage, Divorce and Property Law. What you need to know.

Not everyone knows that a property contract agreement pertaining to property law can be overruled by agreements made in the marriage contract. If couples are unaware of the outcome regarding the sale of a property when married or after a divorce, the aforementioned can have far-reaching consequences.  Couples must realize the importance of the effect this can have on the outcome of a property agreement before making their vows.

In Community of Property


When married in Community of Property is easily understood. In basic terms, it means any assets owned by either one of the spouses during or before the marriage vows are made, belongs to both spouses equally. In the event of divorce the sum of both assets will be divided as equally as possible, while during the event of death, the living spouse will have ownership of all the marriage assets. This is the most repudiating agreement with regards to property law and individual ownership before marriage.

Anti-nuptial Contracts and Property


The Community of Property rule and an anti-nuptial contract differ vastly. Spouses can agree to accrual or not in the case of anti-nuptial agreements.  The meaning of accrual is that any assets made during the marriage period will be shared equally in the event of divorce.  Any property or assets owned by anyone of the spouses before marriage however strictly stays in that individual’s name unless otherwise agreed to on the anti-nuptial contract.

When it comes to property and assets, without accrual means that all the property and assets, whether accumulated during the time of marriage or not, is owned by the individual in whose name the assets are. This can be problematic in the event that the other spouse helps to pay for a particular asset.  It should be stipulated within the contract how a particular asset is shared.

Couples must make an effort to contemplate properly as to their choice in the marital contract when with regards to property.  The future cannot be predicted and it is essential for agreements to be in place beforehand in order to safeguard individuals in the case of divorce and/or death. A hasty decision may supersede the common property law in any event.

JA Attorneys are specialist Family Law and divorce attorneys in Johannesburg. Contact us today.