Choosing Marital Regime When Marrying - Big Influence On Buying and Financing Your Home
Two of the most important commitments we make in life are getting married and purchasing a house. February is the month of love and many couples will be considering and discussing engagement and marriage. It is important that part of your discussion center around your choice of marital regime as it will have an impact on the purchase and financing of your home.
Below is a short explanation of the different marital regimes in South Africa and how they will affect you.
In Community of Property
This is the default marital regime in South Africa. If you get married without signing an ante-nuptial contract (or pre-nup, to use the better known American phrase) you and your spouse share everything equally, including assets and debts. You will need to get your spouse's permission to buy or sell a house or to take out a home loan. This also means that any property you owned before your marriage will automatically be jointly owned after you're married and that you can't sell the home without first obtaining consent from your spouse (there are some exceptions to this).
Out of Community of Property
To choose this marital regime, you and your fiancé will need to sign an ante-nuptial contract before you get married. This contract must be drafted by a Notary Public and signed by you both in front of the Notary. Choosing this regime allows you and your partner to choose whether you want to purchase property jointly or alone. If either of you chooses to buy alone, you are able to buy, finance or sell the property without the consent of your spouse.
According to Customary Law or Muslim Rites
Customary Marriages (after 2000) that are monogamous are deemed to be in community of property. The couple can choose to sign an ante-nuptial contract as well, but the marriage should then be registered at the Department of Home Affairs.
Conversely, getting married under Muslim rights (after 2014) will have the effect of a marriage out of community of property, unless the couple agree otherwise.
According to the laws of a foreign country
If you choose to be married under the laws of any country outside of South Africa, then you can own property in South Africa alone or jointly with your spouse. However, the Deeds Office will require your spouse to sign the transfer documents when the property is sold.
In any of the above cases, it is recommended that you speak with an attorney to discuss the best option to suit you and your fiancé's circumstances, and not to leave it to the last minute!