In a community of property marriage, all debt incurred by the spouses before and during the marriage forms part of the common estate, and this debt can include maintenance obligations to a previous spouse or children from a previous relationship. Being jointly liable for each other’s debts can be problematic, especially in the case of insolvency. If one spouse becomes insolvent, the joint estate can effectively be declared insolvent and all the assets in the estate could be sequestrated.
In a marriage out of community of property without the accrual, each spouse is responsible for their debt and the other spouse cannot be held responsible. Therefore, if a husband files for insolvency, as a general rule the assets of his wife cannot be touched by creditors. These assets include assets that the wife owned before the marriage, assets that she is entitled to in terms of the ANC, and assets that she acquired during the marriage from her income.
When a couple is married with the accrual system, only the debt that they incurred from the commencement of their marriage is included in the accrual calculation. Any debt that was incurred before their marriage is excluded from the accrual calculation. The right to share in the accrual can only be exercised when the marriage is dissolved which means that the accrual cannot be attached by creditors while the marriage is in existence.