Decoding matrimonial choices: a legal insight into marriage in community of property

In today’s era, the choice of matrimonial system is a significant decision that deserves careful consideration. As a law graduate with completed practical vocational training (PVT) and aspiring to secure articles, Modiehi Karabo Hlahatse of Benoni shares her reflections on marriage regarding community of property (COP).

Hlahatse said it is crucial to note that South Africa has various matrimonial systems. Individuals should discuss these with a legal practitioner before making a decision.

“Entering into COP marriage may not be advisable in the contemporary age, because of several reasons.”

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• In COP, spouses share all assets and liabilities acquired during the marriage equally. This does not only include tangible assets, which most people think it is, but it extends to legal matters, limiting an individual’s locus standi, or one’s legal capacity to litigate, without the written consent of their spouse. Debts incurred by one partner become joint liabilities, creating a shared financial responsibility. This legal principle treats the couple as a single economic unit.

• One often overlooked consideration is the matter of inheritance (mafa). In COP, substantial financial events, such as receiving a significant inheritance, require the agreement of both spouses. Both spouses will share that inheritance unless the testator explicitly specifies otherwise in their will. Emphasis on this matter is an inheritance designated for one spouse is typically regarded as a shared benefit.

This underscores that entering into COP is not only about mere asset-sharing but involves joint decision-making in significant financial matters, including handling inheritances.

• Often, the decision to avoid COP is not solely about safeguarding personal assets. It stems from concerns about potential adverse effects on children in the event of financial challenges or divorce. The choice of a matrimonial system involves more than a desire to retain individual assets. It is about understanding the legal implications and potential ramifications.

Choosing a marriage outside the COP or opting for a system with accrual does not diminish the depth of love and commitment between partners. These alternative matrimonial arrangements recognise the importance of maintaining individual financial identities while fostering a strong and supportive union.

“Selecting a different system of marriage does not reflect a lack of trust or dedication. It acknowledges the diverse financial preferences and goals that individuals may have within the marriage.

“The choice of a matrimonial system is a personal decision that aligns with the unique dynamics of the couple, allowing them to navigate their shared life journey while respecting individual financial independence.

“As a law graduate reflecting on the concept of marriage in a community of property, it is important to recognise the choice of a matrimonial system is a highly personal decision,” Hlahatse said.

“While I shared my views on the advisability of entering into a marriage in COP in the contemporary age, it is crucial to acknowledge the diversity of individual preferences and circumstances.

“The information provided is based on legal principles, but the decision-making process for selecting a matrimonial system should involve careful consideration of cultural, legal and personal factors.

“It is advisable to seek guidance from a legal professional who can offer personalised advice tailored to specific situations,” Hlahatse concluded.

Modiehi Karabo Hlahatse’s background:

“I completed my LLB at the University of South Africa in 2022, which provided me with a solid foundation in legal principles.

“Following my academic achievements, I pursued practical vocational training at Illovo Paralegal College of Education (IPCE), where I gained hands-on experience applying legal concepts to real-world scenarios.

“My legal education and practical training have equipped me to thoroughly research and present accurate information on legal matters.”

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