The institution of marriage is considered sacred and our laws strive to protect it as much as possible. Our laws also allow each person to decide the most suitable way to manage their assets. Most people prefer community of property because of Faith based convictions and some simply because it’s a choice that gives them peace to share with their life partners.
In a country where step parenting is significantly common it cannot be denied that matrimonial property forms the subject of many disputes concerning inheritance and divorce settlements which can stretch for years at times!
In a country where the divorce rate is very high, and where people take financial risks in a personal capacity, there is no doubt that the choice to marry in or out of community of property demands level-headed thinking not an emotional analysis.
While it is a general belief that a marriage in community of property is proof of true love, perhaps it is time to put the two choices under a legal microscope and allow each person can draw their own conclusion on what might work for them.
Legal Consequences of marriage in community of property:
1. The most common reason in support of marriage in community would appear to be centered on the “two becoming one” in every sense possible. Ideally, this is the best choice for people who only have children born in the marriage because what they work hard for and accomplish, they bestow on their heirs/children without reservations.
2. Like the phrase suggests, when people marry it is not just two people joining to become one unit, they unite assets and liabilities (debts) for richer and for poorer (as vows go). In other words, the house you own can be attached and sold to settle your spouse`s debts even if the debt dates back to before the marriage because what is his is yours and vice-versa.
3. For those who are self-employed (running under a business name, street vendor or hawkers licence), every time you take a financial risk you put the matrimonial property at risk too because creditors are legally entitled to attach personal assets for the settlement of a debt. Only individuals who run their business in the form of companies are able to separate business and family property in the event of a lawsuit related to their business risks. This is because in law, a company is a “person” too; we call it a juristic person. It can sue or be sued on its own.
4. Community of property means financial commitments (loans) and the sale of property (land) cannot be done without the consent of the other spouse. For spouses who may not be on speaking terms on or are on a self imposed marital separation, your hands are tied until the other parent gives their consent.
5. If you have a child who was born from a previous relationship (whether a previous marriage or just a relationship), plan to secure that child`s inheritance because it is usually the stepchild or child born outside the marriage who suffers most when matters of inheritance arise. If you cannot donate property to them (either because you do not have any at the time or you are already married so it is not possible), consider creating a savings account for them. It offers future financial security at least.
In fact, if you have more than one child outside the marriage then marriage in COP is a luxury you simply can’t afford. Kids born outside marriage usually have no one speaking for them or pushing their interests ahead because half the time they wind up in a dispute with your spouse over inheritance.
Legal Consequences of Marriage out of Community of Property:
A marriage out of community of property can best be described as killing 2 birds with one stone. This is because; in truth nothing is ever black and white in a marriage relationship. Some projects are bound to be jointly done by a couple and such joint projects are usually treated as community of property assets. To put it more simply, even in a marriage out of COP, there are some assets or properties that will be treated a joint property.
1. When you marry out of COP, any property you owned before the marriage remains exclusively yours. Any property exclusively acquired during the marriage is also yours alone too. However, if you bought it, built it or invested in it together then its joint property.
2. Here you can take financial risks without risking your spouse`s assets. For those financial risk takers who absolutely trust their spouses, you can register some assets in the names of your spouse to keep family assets secure while you risk losing the ones in your names in the event your risk does not pay off.
3. You have the freedom to control who inherits what under this system. Inheritance can be conditional, for example, you can stipulate (in your will) that whatever your child inherits should never form part of their matrimonial property in the event the child gets married, nothing wrong with that condition. This ensures that valuable/sentimental family assets are not lost to their spouse in the event of a divorce.
4. Overall, marriage out of COP is the only way to enjoy the best of both worlds. A couple can begin on a blank page at the time of the marriage because property owned before the marriage remains exclusively owned and controlled. If a couple wants to build something together during the marriage that too is fine because it is then considered as a shared possession.
In conclusion, this post is not meant to discourage one property regime in favour of the other but it is meant to help you make an informed decision prior to getting married.
