Is it a good idea to marry in community of property? Experts weigh in

For many, marriage represents a pathway to fulfilment and happiness in life.

Some individuals began dreaming about their wedding day and married life from a very tender age.

As much as marriage is a beautiful prospect to anticipate, it is important to understand the legal implications that accompany tying the knot.

Marriage has the potential to become a disastrous contract when faced with divorce.

Before you say "I do," understanding the key elements of marrying in community of property, including the pros and cons, is crucial.

In an interview with IOL, Hannah Wilson, co-founder of Simplifi-Law and an attorney specialising in family, marital, and divorce law, explained that marrying in community-of-property eliminates the need to conclude and register an antenuptial contract (ANC) before the marriage.

She added that, in the event of a divorce, assets and liabilities are shared equally when married in community of property, which can benefit the financially weaker spouse.

“When couples marry in community of property, all their respective assets and liabilities are legally united in one estate, referred to as the joint estate,” Wilson stated.

“The joint estate encompasses all assets of both spouses, whether acquired before or during the marriage. The source of the assets makes no difference: gifts, legacies, inheritances, salaries, and other money earned through individual effort all become part of the joint estate,” she said.

“In this type of marriage, spouses share in all financial benefits, risks, rewards, and losses. Both have equal powers in managing the joint estate.”

Wilson noted that although there are rewards, risks are involved because all assets and liabilities of both spouses become part of the joint estate, including those acquired or incurred before the marriage and inherited assets.

“Creditors of both spouses can execute against the joint estate. This means one spouse’s financially irresponsible behaviour, poor judgment, or mere bad luck can have devastating financial consequences for both.”

Regarding paperwork, Wilson mentioned that transactions concerning the joint estate require the consent of both spouses.

Meanwhile, marriage counsellor and pastor Siphiwe Katwai emphasised the importance of financial independence before marriage.

In situations of financial crisis, being financially independent positions couples to manoeuvre effectively.

“I've observed beautiful marriages end, not because of infidelity, but due to financial challenges and a lack of financial literacy,” Katwai said.

“Whether you marry in community of property or out of it, when one partner is careless with spending, problems are inevitable, especially if there's only one income in the household,” she said.

“So, my advice to couples is to be mindful of the financial implications that may arise should their marriage dissolve. Whatever decision they make regarding their marriage contract, they should opt for choices that favour both individuals should they part ways.”

IOL News