How being married in community of property affects debts

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The last thing most people think about when getting married is the consequences of the marriage contract they are tying themselves to. That is because most people get married with the belief that their love will last forever and they will never have to deal with divorce or separation. But no matter how in love you are, it is important to never overlook important things like the kind of marital contract you are binding yourself to.

South African law has different types of matrimonial property systems; marriages in community of property, marriages out of community of property, which are subject to the accrual system, and marriages out of community of property, excluding accrual.

The most popular one of the systems is being married in community of property.

However, although there are benefits to being married in community of property, there are also disadvantages that cannot be overlooked.

One of the biggest disadvantages is dealing with debt.

When married in community of property, the spouses share a debt and the 3rd party or creditor can claim their debt from either one of the spouses.

In other words, debt and any assets that were acquired before and during the existence of your marriage is shared in undivided shares and both spouses are jointly and severally liable for the full debt.

This is a huge responsibility to take on and can put a strain on the individual who did not apply for the credit.

Another disadvantage when it comes to being married in community of property and debt is insolvency.

If a spouse, due to whatever circumstance, cannot pay their debt, unfortunately both spouses will be declared insolvent. This also applies when it comes to a court order against either one of the spouses, the communal estate can be lost.

The other factor to consider is that, if for some reason, the marriage does not work out and you divorce, your possessions and wealth will be split equally between the two of you regardless of who brought what into the marriage.

In terms of death, all claims on the estate have to be settled before the surviving spouse can expect to be awarded any assets. This could also put you at a disadvantage, especially if the debt is huge.

Learn more about how being married in community of property affects your debts in the video below: