No Marriage Contract: The Default Is “In Community of Property”
Marriage in South Africa comes with a default setting. If you do not sign a marriage contract before the wedding, the law puts you into community of property automatically. One joint estate. Joint debts. Spousal consent rules for the big stuff. This page is the plain-language explainer of what that default actually does.
What the default actually is
“In community of property” is the South African default matrimonial regime. The Matrimonial Property Act 88 of 1984 says that any marriage entered into without a prior antenuptial contract (a marriage contract) is automatically in community of property. There is no opt-in — it just happens.
What it sets up:
- One joint estate. Everything you each owned before the wedding, and everything either of you acquires during the marriage, becomes a single shared pool. Both spouses own an undivided half-share.
- Joint debts. Debts from before the wedding 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. You cannot sell immovable property, sign for major credit, withdraw retirement annuities, or perform certain other acts without your spouse’s written consent.
- Equal split at the end. Whether the marriage ends in divorce or death, the joint estate is divided 50/50, regardless of who contributed what.
What this looks like in everyday life
Buying or selling a house
You cannot do it without your spouse’s signed consent. This holds even if 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. In community of property couples often discover this for the first time when their bank refuses to release funds without the spouse’s signature.
Receiving an inheritance
Unless the person who left it to you specifically said in their will that the inheritance is excluded from the joint estate, it falls into the joint estate. You have just shared half your inheritance.
If your spouse is sued
You are effectively sued too. Creditors can attach your assets to satisfy your spouse’s judgment debt because both of you own the joint estate.
If your spouse is sequestrated (insolvent)
So are you. Joint estates are insolvent jointly.
Who genuinely chooses this?
A small number of couples consciously choose in community of property. They like the symbolism of total sharing. For most modern couples, however, the regime creates real and unintended exposure — especially where one spouse runs a business, signs surety, or carries any kind of credit risk.
The practical alternative for most couples is a marriage contract with accrual: independence and protection during the marriage, with fair sharing of the growth at the end.
Compare your three options before getting married
| Question | No marriage contract (in community) | Marriage contract with accrual | Marriage contract without accrual |
|---|---|---|---|
| Do we need to sign anything? | No | Yes | Yes |
| Who owns what? | One joint estate, 50/50 | Each spouse owns their own estate | Each spouse owns their own estate |
| Who pays the debts? | Both of you | Each spouse for their own debt | Each spouse for their own debt |
| Do I need my spouse’s signature for big decisions? | Yes | No | No |
| What happens to inheritances? | Fall into the joint estate (unless the will says otherwise) | Stay separate by law | Stay separate by law |
| What gets shared at divorce or death? | The whole joint estate, 50/50 | Only the growth, 50/50 | No automatic sharing — court has a discretion since EB v ER 2024 |
| Best fit for | Couples who really do want full sharing | Most first-time marriages | Second marriages, family-business owners, large existing estates |
Detailed legal commentary on in community of property → antenuptialcontracts.co.za
“We’re already married — can we still sign a marriage contract?”
Not directly. A marriage contract has to be signed before the wedding. Once you are married in community of property, changing your regime requires a section 21 High Court application: both spouses must consent, no creditor may be prejudiced, and the court must approve. It is doable, but it is significantly slower and more expensive than signing a contract before the wedding.
If your wedding is still ahead, the cheapest, fastest, simplest path is always to sign a marriage contract beforehand. Most of our clients sign by power of attorney — you do not need to come in to our office.
Frequently asked questions
How late can we sign a marriage contract?
It 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 at Louwrens Koen Attorneys. Drafting, power of attorney, notary attendance, and Deeds Office registration are all covered.
Do we have to come in to your office?
No. Most of our couples sign by power of attorney, scanned and emailed back. Our representative signs the marriage contract before the notary at our office on your behalf. In-person signing in Pretoria is available if you prefer.
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. This sounds neat but is also the reason creditors of the deceased can reach into the survivor’s half.
Sign a marriage contract before your wedding
R1,950 all-inclusive. Drafting, power of attorney, notary, and Deeds Office registration. Nationwide service from Louwrens Koen Attorneys, Pretoria.