What’s mine is mine and what’s yours is….mine??

by Kimberly Flanagan


So you got engaged and you’re busy planning your wedding; colours, bridesmaids, venue, dress, it’s all so overwhelming and exciting but then there’s that little thing that is sitting at the back of your head…

To be or not to be…in community of property.

Sure, in the early stages of your relationship and your marriage it’s easy to say that you will share everything and that money isn’t an issue, I mean you have a joint Facebook account, you might as well have a joint bank account, right?

Not so much.

There is a lot to consider and talk about. And it’s also a good idea to make sure that everything you decide upon, is put on paper.

So what does it mean to get married in or out of community of property?

When you get married in community of property, everything that is accumulated between the husband and wife during the marriage becomes joint property. Your debt becomes your husband’s debt and vice versa. If you get married and you have a bad credit score, that can also affect credit ratings and the applications for loans or bonds.

If your credit score is bad, you might also be at a disadvantage and be charged higher interest.

So you might want to have the money conversation with your partner before you get married so that you can unpack all the risks involved and also establish whether or not you are prepared to go into the marriage if there are outstanding loans on either party’s part.

According to the Family Law website:

A marriage in community of property is undoubtedly the cheapest and most popular form of all the matrimonial regimes, although deeply flawed. No ante nuptial contract is required, so if you marry without an ante nuptial contract, you will by default be married in community of property. In this form of marriage, the spouses’ estates (what they own/assets and any debt/liabilities) are joined together and each has the right of disposal over the assets; they are equal concurrent managers of the joint estate. Each has an undivided or indivisible half share of the joint or communal estate.

When you are married in community of property and you decide to get a divorce, all assets must be equally divided.

When you marry out of community of property, each spouse has an individual estate. In other words, what you came into the marriage with and what you as an individual accumulated during the marriage, is what you take with you in the case of a divorce.

It can be contested and many people have gone through ugly divorce proceedings because they supported their partner throughout their career or there are children involved, hence is so important to iron all these things out before you get married.

There are advantages as well as disadvantages of being married in community of property.

Advantages:

  • There is no special contract required before you enter the marriage.
  • When you are financially weaker, you spouse can carry you.

Disadvantages:

  • The economically stronger spouse has to share his or assets with the other. (That is only a disadvantage if you see it that way)
  • It can be problematic if you are jointly responsible for one another’s debts.
  • If the marriage fails, it can become a dirty fight between the spouses.

As with everything, when you marry out of community of property, there are the good things as well as the bad things depending on the type of contract you take.

There is the ante nuptial contract and then there is the accrual.

The ante nuptial contract allows each person to personalise the matrimonial agreement.

The accrual allows you to share assets that were accumulated during the marriage. Each estate will be calculated individually in order to determine the value and shared dissolution of the marriage.

Advantages:

  • You do not share your estate (Again, it depends on the contract you take)
  • You are responsible for your own debts.
  • Creditors of each spouse cannot be attached to the other spouse’s estate.

Disadvantages:

  • You are not entitled to any of your spouse’s estate in the case where you are unemployed. Meaning, if you have a divorce, you leave with nothing.
  • Calculation of the estate in relation to the accrual can be complicated.
  • You have to sign an ante nuptial agreement in order for the accrual to take effect.

So you see, marriage is not so much about the wedding and the honeymoon. There is a lot of administration you need to get through to make sure you and your partner are on the same page and it’s always important to make sure these things are discussed before you call your wedding planner. Divorce can get ugly and no one want’s to go through that.

Having a lawyer close by is handy as you never know what could happen. It’s also important that both of you remain honest and open about what you accumulate and what you want. This is especially important when there are children involved.

 

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