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Monday 22 April 2019
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IN or OUT OF COMMUNITY OF PROPERTY

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Marriage is a good thing and people should get married. Just like any relationship, marriage requires falling in love many times, but always with the same person. It is not about age but finding the right person. A person to build a life and family with for the long haul. Comedian Will Ferrell says “Before you marry a person, you should first make them use a computer with slow Internet service to see who they really are.” Thus, it requires ones full in-depth knowledge of the other.

Marriage is not a dream you wake up from and decides to tie the knot out of infatuation. It is a institution that requires one to the take time as an individual firstly and then together as a couple to thoroughly plan the journey ahead. One such component that has nothing to do with emotions is the contract. It is a two way route as couples choose to go for either the In Community of Property or Out of Community of Property contract which decides how they handle their assets.

Choosing between the two has been received with different interpretations from a traditional point of reference but Esmeralda Nguasena-Katjaerua, Director at AngulaCo Incorporated explained that it all boils down to the couple’s preferences.

IN-
Marriage in community of property means that all the belongings and the debts of the husband and the wife are put together into what is called a ‘joint estate’ and they each own half of everything in the joint estate.

Everything that belonged to the husband before the marriage and everything that belonged to the wife before the marriage, becomes part of the joint estate.  So, any money earned by either of them during the marriage becomes part of the joint estate.

Also, everything the couple buys during the marriage also goes into the joint estate, no matter who actually paid for the item. The money and property in the joint estate can be used to pay loans or debts, no matter which spouse is responsible for them. And if the marriage comes to an end, the joint estate is divided equally between husband and wife.

While this might sound scary, the court does however make provisions based on circumstances that might have led to the dissolution of the marriage. “There is however a legal provision on whether to share the estate 50/50. For example, if I am the wife and I only contributed 10% to build up that joint estate and yet I am the one who breaks up the marriage, my husband can ask the court that I only get the 10% that I initially contributed as opposed to the 50% that I would have benefited from the split. It is more often the innocent party who waives the benefit of that joint estate,” said Nguasena-Katjaerua.

The provisions make room for habitual examples that arise in courts daily such as infidelity or pure negligence. “If you are a millionaire drunkard and you go around and drink the estate money away to the extent that it affects your marriage, then the court will order a 50/50 split. At the end it’s more of who did what and what led to the split.”

The Married Person’s Equality Act says that a husband and wife married in community of property must agree to sell, give away or borrow against important joint assets – such as the house, household furniture or livestock. They must also agree before taking out a loan which is secured by joint property. Neither of them has the right to do these things independently.

“When married In Community of Property, you cannot just stand up one day and decide to sell your house without the consent of your partner. The bank or whatever institution will ask for the signature of your spouse.”

“However, if the husband goes and buy a car on credit from Paulus in Eveline Street, Paulus can come and take whatever from the house regardless of who bought it as long as he gets his money. This will affect the financial status of the marriage. So, when getting married In Community of Property, there so many things that the individual cannot just do without the other.”

The short of it is that every affair within the circumference of the marriage affects both parties. Both parties have a hand in the running of the marriage and there is no individual voice without the other.

OUT-
When it comes to the Out of Community of Property regime, society has attached a negative anticipation of separation to this constitution. Unlike the joint estate which couples build with the In Community of Property, the opposite regime does not celebrate this route as each partner is only entitled to what belongs to them.

Marriage out of community of property means that the husband and the wife each have their separate belongings and debts. “If one of the spouses gets into debt, only what belongs to them will be repossessed.”

Everything that belonged to the husband before the marriage remains his, and everything that belonged to the wife before the marriage remains hers. They each keep their own earnings. “At the dissolution of the marriage, whatever you purchased is yours and whatever I purchased is mine. You can go and buy a house without the consent of your spouse. You can do an act completely independent from the other party.”
As such, everything the husband buys during the marriage is his only, and everything the wife buys during the marriage is hers only. The husband and the wife are each responsible for their own loans and debts.

According to the Married Person’s Equality Act, a husband and wife married out of community of property will each control their own belongings. They can each buy or sell their own belongings without asking each other for consent. They can each take out loans on their own.

This regime is considered suitable in a sense that it protects the other spouse in an event that the other messes up. The consequences to actions made by one spouse are not automatically attached as the responsibility of the other. “If you and I are spouses and you have businesses; if you go into debt with your business, people cannot just come and sell the house that we own as a couple. So it offers you that protection. Any debt that you will incur, they can only come and take what belongs to you.”

The misunderstanding is however that if you are married Out of Community of Property one cannot do things together with their spouse. Nguasena-Katjaerua adds that while the individual properties stand on individual names, couples can still buy things to be owned as a collective. “If we are married out of community of property, we can still buy a house or and put it in a 50/50 ownership.”

IT’S UP TO YOU
While both regimes of property speak to dissolution anticipation, divorce as one reason that may dissolute the marriage is a very sensitive matter in itself. Marriage as a constitution is the genesis of building a life with someone and as such, there is more to it than just love.

In reference to the two contracts and their merits, Nguasena-Katjaerua says marriage in community of property can be a very dragged-out situation. “The mood couples have when they get married is not the same when they get divorced. “Imagine if this person slept with your brother or abused you physically and you are told that you have to share with them the estate that you contributed more. It becomes a terrible situation”

“However, if the two spouses mutually decide to go out with what they brought in, then that can also be done.”

But marriages In Community of Property are in some ways like business partnerships. All the property and debts of a marriage in community of property are part of the joint estate, and each spouse has a half share of that estate. So the ideal approach is for all major decisions about property and debts to be made jointly. Husband and wife should consult each other on all major financial decisions.

 

By Fikameni Mathias




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