In Community of Property: The South African Default
If you marry in South Africa without signing an antenuptial contract before the wedding, the law makes the choice for you. You are automatically married in community of property: one joint estate, joint debts, and spousal-consent rules for major transactions. For most modern couples this is not the regime they would have chosen had they understood it.
What the default regime actually is
The Matrimonial Property Act 88 of 1984 provides that any marriage entered into in South Africa without a prior antenuptial contract is automatically a marriage in community of property. There is no opt-in — it just happens.
The four practical effects:
- One joint estate. Everything you each owned before the wedding, and everything either of you acquires during the marriage, becomes part of a single shared pool. Both spouses own an undivided half-share of the whole.
- Joint debts. Debts from before the marriage and debts incurred during the marriage are joint. A creditor of one spouse can claim against the joint estate, including assets the other spouse contributed.
- Spousal consent (section 15 of the Act). You cannot sell immovable property, sign for major credit, withdraw retirement annuities, or perform certain other acts without your spouse’s written consent.
- 50/50 split at dissolution. Whether the marriage ends in divorce or death, the joint estate is divided equally, regardless of who contributed what.
What this looks like in practice
Buying or selling immovable property
Cannot be done without your spouse’s signed consent. This applies even where the property was registered in your name only before the wedding.
Running a business
Many business contracts — particularly suretyship and large credit facilities — require spousal consent. Couples married in community of property frequently discover this only when their bank refuses to release funds without the spouse’s signature.
Inheritances
Unless the testator’s will specifically excludes the inheritance from the joint estate, an inheritance you receive during the marriage falls into the joint estate — effectively shared with your spouse.
If your spouse is sued
The judgment debt can be satisfied from the joint estate, including assets you contributed. There is no firewall between your assets and your spouse’s liabilities.
Sequestration
If one spouse is sequestrated, the joint estate is sequestrated. Both spouses suffer the consequences.
Who genuinely chooses this?
A small minority of couples deliberately want full economic sharing — usually for symbolic or religious reasons. For everyone else, in community of property creates real exposure that they would not have accepted if they had thought about it before the wedding.
This is why the vast majority of couples we draft contracts for choose an antenuptial contract with accrual: independence and protection during the marriage, with fair sharing of the growth at the end.
The three regimes side by side
| Feature | In community of property | Out of community WITH accrual | Out of community WITHOUT accrual |
|---|---|---|---|
| Legal document | None | Notarial antenuptial contract | Notarial antenuptial contract |
| Asset ownership | One joint estate — 50/50 | Two separate estates | Two separate estates |
| Debt and liability | Jointly liable | Each spouse liable for own debts | Each spouse liable for own debts |
| Contractual capacity | Limited — spousal consent required (s. 15) | Full autonomy | Full autonomy |
| Sharing on dissolution | 50/50 division of joint estate | Equal sharing of accrual | No automatic sharing* |
| Inheritances | Form part of joint estate unless excluded | Excluded from accrual by law | Remain with the inheriting spouse |
| Best suited for | Couples wanting full economic sharing | Most first marriages | Second marriages, business owners, large existing estates |
*Discretionary redistribution available since EB v ER 2024 (2) SA 1 (CC).
“We are already married — can we still sign?”
Not directly. An antenuptial contract has to be signed before the wedding ceremony. Once you are married in community of property, changing your matrimonial regime requires a section 21 High Court application under the Matrimonial Property Act:
- Both spouses must consent to the change.
- No creditor of either spouse may be prejudiced by the change.
- The court must be satisfied that there are sound reasons for the proposed change.
It is doable, but it is significantly more time-consuming and expensive than signing a contract before the wedding. More on postnuptial contracts →
If your wedding is still ahead, the cheapest, fastest, and simplest path is always to sign an antenuptial contract beforehand.
Frequently asked questions
How late before the wedding can we sign?
The contract must be signed before the wedding ceremony. We have signed contracts the day before. Earlier is calmer — aim for four to six weeks ahead.
What does it cost?
R1,950 all-inclusive. Drafting, notary attendance, and Deeds Office registration are all covered.
If we are in community and one of us dies, what happens?
The surviving spouse automatically owns half of the joint estate. The other half flows according to the deceased’s will (or by intestate succession if there is no will). This sounds protective, but it is also why creditors of the deceased can claim against half of the survivor’s assets.
Are we automatically in community of property if we marry in church / by religious rite?
If your marriage is recognised under the Marriage Act 25 of 1961, the Civil Union Act 17 of 2006, or the Recognition of Customary Marriages Act 120 of 1998, the default rule applies: in community of property unless an antenuptial contract is in place. The form of the ceremony does not change the default regime.
Sign an antenuptial contract before your wedding
R1,950 all-inclusive. Drafting, notary attendance, and Deeds Office registration.