A reader, who lives in a house bought by her late husband before they met, wants to know how she can prove that she is married in community of property as she didn’t sign an antenuptial contract.
In addition, her notary public has been scrapped from the roll.
Couples married in community of property typically do not sign an antenuptial contract.
See the reader’s question here.
In fact, the absence of the registration of one is evidence of a marriage in community of property.
For a couple contemplating marriage, one of the usual aspects for consideration is the matrimonial property status that will apply to them and their respective estates.
Simply put, a couple can be married in one of three ways: in community of property, out of community of property or out of community of property but with the application of the accrual system.
The default system is marriage in community of property, which applies where the couple take no steps to alter it.
For this to occur the couple can simply proceed to get married without concluding an antenuptial contract.
Unless an antenuptial contract is registered in the manner and time frame laid down by the Deeds Registries Act, it will have no effect on any affected persons.
The reference to a notary public in the reader’s situation is unclear, as one would typically only appear before one to sign an antenuptial contract. The scrapping of her notary public should not impact on the validity of any contract, should one actually have been concluded.
In order for a couple to be married out of community of property, an antenuptial contract excluding any community of property and profits and losses between them must be concluded.
Being married in community means that the couple have a single estate and each person owns an undivided half-share of their assets or losses.
Being married out of community of property is the polar opposite as, in that case, each spouse continues to own his or her own assets and is essentially only burdened by debts belonging to that spouse.
The accrual system applies to marriages out of community of property where a couple specifically contract for its application.
The application thereof only kicks in on death or divorce and has the effect, depending on the terms of the contract, that the wealth accumulated by either or both parties during the duration of their marriage is split between the two.
In many instances it is less desirable to be married in community of property due to the risk of third-party liability spilling over to the other spouse.
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