<MF LEGAL>
Under South African law there are various ways in which a marriage can be governed. This includes particular reference in the conveyance of a property as a marital regime may determine who the owner of the property actually is.
Where parties are married in community of property the parties own the property jointly. This is also the case where a person owns a property prior to getting married and thereafter marries in community of property. In this instance the new spouse’s name will not be on the title deed but by virtue of the marital regime will still own half. Where parties wish, their new marital status can be endorsed on the title deed to show this, however, this is not a necessity to prove joint ownership in this circumstance.
Where death occurs one spouse may acquire the entire property, meaning that the surviving spouse will retain their 50% of the property and the deceased’s share could be bequeathed to them in terms of a will. On divorce, however, each party will own 50% of the property, unless a court directs otherwise.
With marriages out of community of property it is important to note that there are two ways in which a person can marry out of community of property, that is, either with accrual or without accrual. A without accrual scenario occurs where parties have an ante-nuptial contract and state that each person’s assets remain that person’s own, irrespective of what happens in a marriage. This is probably the safest way to keep a property.
A marriage with accrual states that parties upon death or divorce may share in the profits of the spouse whose estate has grown the most during the marriage. In such instance one spouse may have to share the property or may have to sell the property in order to pay the other spouse the sum of money they are entitled to in terms of the marital regime. It may also occur that one party may have to give the house in the settlement of the divorce claim with accrual.
Under South African law there are various ways in which a marriage can be governed. This includes particular reference in the conveyance of a property as a marital regime may determine who the owner of the property actually is.
Where parties are married in community of property the parties own the property jointly. This is also the case where a person owns a property prior to getting married and thereafter marries in community of property. In this instance the new spouse’s name will not be on the title deed but by virtue of the marital regime will still own half. Where parties wish, their new marital status can be endorsed on the title deed to show this, however, this is not a necessity to prove joint ownership in this circumstance.
With marriages out of community of property it is important to note that there are two ways in which a person can marry out of community of property, that is, either with accrual or without accrual. A without accrual scenario occurs where parties have an ante-nuptial contract and state that each person’s assets remain that person’s own, irrespective of what happens in a marriage. This is probably the safest way to keep a property.
A marriage with accrual states that parties upon death or divorce may share in the profits of the spouse whose estate has grown the most during the marriage. In such instance one spouse may have to share the property or may have to sell the property in order to pay the other spouse the sum of money they are entitled to in terms of the marital regime. It may also occur that one party may have to give the house in the settlement of the divorce claim with accrual.
