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“Until Debt do us Apart”
01 February 2021  | Crystelle Steyn
 

Did you know that when you marry in community of property you also share the debts of your spouse and will also be held liable for them?

In my experience it seems couples weren’t aware of each other’s debts before they marry and very often as a result the marriage end up in a divorce.

One of the biggest disadvantages of a marriage in community of property is that you automatically become an owner of half of the other spouse’s estate which not only include the assets, but also the liabilities and debts they have, even if they accumulated before the marriage. It happens so often that one spouse will make debt without the knowledge of the other during the duration of the marriage not knowing  the implications thereof.

This means that should Creditors take legal action against your spouse for any outstanding debt will now also be able to take action against you as you are now jointly responsible for his/her debts (even if you did not know about it). 

The only option in a Divorce proceeding to not be liable for half of your spouse’s debt is when both parties mediate the matter and sign a settlement agreement stating that each party should pay his or her own debt, but this is most of the time not the case and the spouse who usually did not make any debt, walk out with half of it.

The best advice would be to draft an Ante-Nuptial contract BEFORE you get married to ensure that neither you nor your spouse can be held responsible for each other’s debts. If you are married in community of property, make sure to have the talk and play open cards with each other regarding the debts you have and start financial planning sooner than later.

 

Reference list:

Children’s Act 38 of 2005.

Statistics South Africa

 
 
 
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