What is excluded from marriage in community of property
In South Africa, when you enter a marriage in community of property (the default matrimonial property regime), all assets and liabilities acquired during the marriage are shared equally by the spouses. However, there are certain exclusions – property that doesn’t fall into the communal pot. Here’s a breakdown of what’s generally excluded:
Assets Owned Before Marriage:
- ✅ Property Inherited Before Marriage: If you inherited a house or any other asset before the marriage, it remains your separate property. The growth in value of such inherited assets during the marriage might however become part of the communal estate.
- ✅ Gifts Received Before Marriage: Similarly, any gifts you receive as an individual before the marriage are considered your separate property.
Assets Excluded by Antenuptial Contract:
- 📌 Antenuptial Contract: Couples can opt out of the community of property by concluding an antenuptial contract before marriage. This contract allows you to specify which assets will be excluded from the joint estate. For example, you could choose to exclude a family heirloom or a business you owned before the marriage.
Certain Life Insurance Policies:
- ✅ Life Insurance Proceeds: The benefits paid out on certain life insurance policies taken out by a spouse before the marriage might be excluded from the community estate. However, premiums paid during the marriage might be considered part of the communal pot. It’s best to consult the specific policy terms and conditions for clarity.
Delictual Liabilities:
- 📌 Delictual Liabilities: These are debts or obligations arising from a spouse’s wrongful act or omission. For instance, if one spouse gets into a car accident and is liable for damages, that debt wouldn’t necessarily become a joint marital liability.
Important Points to Remember:
- ✅ The burden of proof lies with the spouse claiming that an asset is excluded from the community of property. They need to prove it was acquired before marriage or falls under another exclusion category.
- ✅ The growth in value of excluded assets during the marriage might be considered part of the communal estate. It’s best to consult with a lawyer specializing in family law for specific advice on your situation.
- ✅ This is a general overview, and specific circumstances can influence what’s excluded. For a more comprehensive understanding, consulting with a lawyer is recommended.
Considering an Antenuptial Contract?
📌 An antenuptial contract can be a wise decision, especially if you have significant pre-marital assets or complex financial situations. A lawyer can help you draft a contract that meets your specific needs and ensures clarity about what’s excluded from the community of property.
