COP - COMMUNITY OF PROPERTY
When parties are married in community of property(COP) they own everything together. There is no longer mine and yours, it is all ours and it does not matter if it was owned before the marriage or was bought during the marriage. When parties to a marriage are married in community of property, they do own all their assets jointly. That means that each party has a half share in each asset. It is referred to as an undivided half share. to illustrate this point, it means that both parties own half of their home, and that the rooms are not divided into who owns which room. There are some contracts that each party can do on their own but some, like buying a house, need both spouses to sign. There is a benefit of being married in community of property, that it is a commitment to the marriage. At the same time, both parties will share in the profits of the marriage.
ANC - ANTENUPTIAL CONTRACTS
What is an ANC: An ANC is an agreement entered into by two people who are get married and want to use this contract to regulate their financial arrangements to protect each other and their individual assets during the marriage from outside threats and to regulate the division of assets at the end of the marriage. This is most important when one of the spouses passes away.
Who may get an ANC: Anyone who decides to get married may have an ANC drawn up, whether it is a marriage in the sense of Western traditions, civil union, same sex or an African traditional marriage.
What happens if we do not sign an ANC: In South African law, you are married in community of property unless there is an ANC stating otherwise.
What are the drawbacks to not being married with an ANC in place:
- You are jointly liable for each other’s debt’s which can become quite difficult in cases of insolvency and includes any debt left behind by your spouse after their passing.
- You require your partner to co-sign most legal contracts and in the event of friction in the marriage, this can prove a major source of contention.
- If you are financially stronger than your spouse, you essentially gift them half of everything you own.
- The reality is that not everyone is good with money and the mistakes of one’s spouse can ruin you both financially leaving you with no safety net.
CIVIL UNIONS
As part our new democracy, same sex relationships were finally recognised as real relationships and same sex marriages have also been sanctioned. As part of this process, they have been given the same status as conventional marriages. The property regimes are the same, the marriage is automatically in community of property unless an ANC has been signed with a notary before the marriage. We are able to assist in drawing up this type of ANC with the variations.
TRADITIONAL MARRIAGES
Traditional marriages are recognised in terms of South African law as a legal marriage.
These marriages follow the tradition that the marriage is in community of property unless the couple decided that they don’t want that. If they don’t want to be married in community of property then they need to sign an ANC with a notary before their marriage ceremony.
COHABITATION AGREEMENT- Protecting your Relationship and Your Rights
Many people in South Africa believe that living together for a certain period of time creates a “common law marriage,” granting legal rights similar to married spouses. This is a myth. South African law does not recognise common law spouses.
While a universal partnership is a possible legal route, it must be proven in court—often after a relationship has ended—costing time, money, and emotional energy. Things can get even more complex if a partner passes away, as there is no automatic right to inherit without a valid will.
The Solution: A Cohabitation Agreement
A cohabitation agreement is a legal contract that defines each partner’s rights and responsibilities while living together and outlines what happens if the relationship ends.
Management of joint and individual assets
1. How expenses are shared
2. Division of jointly acquired property
3. Support obligations (financial or otherwise)
4. Arrangements for children (care, contact, surnames)
When Should You Sign One?
The best time is when you first move in together, but any of these milestones are ideal:
1. Buying property together
2. Having or adopting a child
3. Moving into a new shared home
4. Blending families or finances
A Cohabitation Agreement Does Not Replace a Will
We recommend each partner also has a valid will to ensure their wishes are legally protected in the event of death.
Let Dewar Attorneys Help You Plan Confidently
Our legal team can draft a cohabitation agreement tailored to your needs—providing clarity, protection, and peace of mind.