HOW MARRIAGE CONTRACTS CAN AFFECT HOMEOWNERSHIP
Two of the most important commitments you’ll ever make in your life is marriage and buying a home. They are inevitably linked because not only does marriage become a driving force for buying property, but the marriage contract comes into play when applying for a home loan and can affect homeownership.
To help you better understand how your marriage contract can affect homeownership, below is a breakdown of each option for registering a home at the Deeds Office.
In Community of Property
This marriage contract is the epitome of what’s yours is mine and what’s mine is yours. In these instances, any home purchased between you and your spouse will be jointly registered in the name of both spouses. This also means that if you owned property before becoming married, the property will automatically form part of the joint estate after you’re married. This means that you can’t sell the home without first obtaining consent from your spouse, as he/she owns that home with you. A possible exception is if you inherited a property subject to a condition that stipulated that the inherited property is excluded from any future joint estates.
Out of Community of Property
Also referred to as an Ante-Nuptial Contract (ANC), these contracts typically exist to protect any assets going into a marriage. In these instances, you are free to own and purchase property in your name without the consent of your spouse. However, you are also able to purchase a property together. These contracts will differ depending on whether the ANC includes or excludes the accrual system. In an ANC without accrual, the two estates remain separate during the marriage. But an ANC with accrual means that while the two estates before marriage are separated, after the date of marriage the two estates become joined and any property may then form part of the accrual unless it’s expressly excluded within the ANC. If the marriage dissolves or there is a death of a spouse, then the items accrued during the marriage (unless expressly excluded in the ANC) are split fairly between the individuals.
According to Customary Law or Muslim Rites
Unless an Ante-Nuptial Contract is in place, any customary marriage concluded after The Recognition of Customary Marriages Act 120 of 1998 came into effect on 15 November 2000 is deemed to be in community of property and will follow the same conditions as the ANC. Those who were married before this Act came into effect can own property separately from their spouse or they may purchase property together as co-owners if this is what they prefer. Pre-2000 Customary Law and Muslim Rites marriages are similar. But those married after 2000 under Muslim Rites would enjoy similar benefits of a marriage Out of Community of Property, whereas post-2000 Customary Law marriages are more like being married in Community of Property.
According to the laws of a foreign country
When you’re married under the laws of any country outside of South Africa, then you can own property separately from your spouse and can have the property registered in your name. You may also choose to purchase property together as co-owners if this is what you prefer. The only snag is when the property is sold, whoever is the registered owner of the property will need to be duly assisted by their spouse to conclude the transfer.
Reach out to a property professional
No matter how your marriage is structured, owning property either jointly or separately will help ensure greater financial security for the household. To learn more about the topic, you should reach out to an attorney. If you’re currently searching for your dream home with your spouse, it’d be best to get in touch with a real estate expert who will find you the perfect home in which to make all your newlywed memories.