Civil marriages in Namibia take two forms, namely marriage in community of property and marriage out of community of property. 

When a couple marries, a rebuttable presumption arises that they are marrying in community of property. 

Commonly, it is quite certain that if it so happens that a couple marries without entering into an ante-nuptial contract, the marriage is automatically in community of property. 

Ante-nuptial contract: a written agreement that is made between prospective spouses before a marriage. It generally serves as an altering tool that designs the property arrangement as per the intentions of the parties. 

The effect of a marriage in community of property is that property is owned by the spouses in common and equal, undivided shares. Should the marriage dissolve, the joint estate is divided into equal shares between the spouses, who are each entitled to a halfshare, with adjustments made for any fines or costs incurred by either during the marriage. 

Therefore, the nature of this marriage regime is that when a couple marry in community of property, any money or possessions belonging to either of them at the time of the marriage and acquired by them any time thereafter, ceases to be private property of the one person, and becomes part of the joint estate of the partners in which each has an equal but undivided share. 

The greatest advantage of this type of marriage is that both spouses have equal rights to administer their joint estate, and lay claim to the assets as equals. A penniless woman or man who marries a millionaire in community of property, for example, would in turn be a millionaire. Also, it applies ipso iure, so no money will be spent for the execution of an ante-nuptial contract. 

The drawback of this marital regime has to do with the financial implications. If one of the parties runs into financial difficulty and his/ her estate is sequestrated, the other party’s estate will also be affectedly sequestrated due to the fact that they become one estate after marriage. In addition, debtors are entitled to claim outstanding debts from both parties due to the fact that they have one estate. 

A mere outline of the nature of a marriage in community of property does not give enough clarity on the content of this regime. 

Hence, it is crucial that I present a detailed description of this regime in an effort to identify its unique characteristics, which are different from a marriage out of a community of property. 

Marriage in community of property basically entails that upon marriage, all the assets and the liabilities of both spouses were merged into a joint estate of which husband and wife each became owners of an undivided half-share. 

At the moment of entering into a valid community of property marriage, the spouses become co-owners of everything that either of them owned prior to the union. 

This transfer of ownership takes place automatically by operational law so that no delivery of movable property, registration of immovable property, cession of rights and so on is necessary. Generally, all assets acquired by either spouse after marriage also become part of the joint estate. 

As exceptions to the general rule that all assets of spouses become part of the joint estate, there are certain assets that do not form part of the joint estate. 

These include assets excluded in an antenuptial contract; assets excluded by will or deed of donation; assets subject to a usufruct; engagement gifts; benefits under the Friendly Societies Act 25 of 1956; damages for a spouse as a result of a delict committed against him or her; costs awarded to a spouse in a matrimonial action without the marriage being dissolved; and assets that replace separate assets. 

A marriage in community of property not only results in a community of assets but also in a community of liabilities. 

This basically means that a husband and wife become tied co-owners in undivided and indivisible half-shares of all the liabilities they have at the time of their marriage, as well as all the liabilities they acquire during the marriage. 

Marriage out of community of property, when the spouses sign an ante-nuptial contract in which they agree that their marriage should be out of community of property, or because the parties were domiciled in a country whose laws provide that marriage is automatically out of community of property when the wedding was solemnised. 

By simple definition, an ante-nuptial contract is one entered into by intending spouses, and which is designed to ensure that a marriage will be out of community of property. 

There must be agreement, and the rules relating to fraud, mistake and duress that apply to contracts in general also apply to ante-nuptial contracts. 

An ante-nuptial contract can be concluded only by persons who are free to marry each other. It may contain virtually any stipulation, as long as it is not illegal, contrary to good morals, or contrary to the nature of marriage. 

An advantage of this marriage is that each spouse manages his or her own estate and property, as well as stands liable for his or her own debts, profits and losses. 

This normally does away with conflict within a marriage, as blaming one another for property loss or insolvency will not be there as each is responsible for his or her own, and does not interfere with the other’s estate, unless asked to do so. 

A clear disadvantage of this regime would be the case where a spouse has no substantial income. 

A housewife that signs an ante-nuptial contract would not be independent in any sense, and will always have to look at the husband for support, which makes her feel inferior and worthless. 

Furthermore, in cases of dissolution of such a marriage, the husband or wife will be left with nothing at all. 

It can be concluded that intending spouses should seek legal advice on marriage regimes before engaging in marriage to avoid disappointments and losing properties, taking into account divorce rates in Namibia. 

It is further advisable for intending spouses to acquaint themselves with various provisions of the Dissolution of Marriages Act 2024 (Act No. 10 of 2024). The variable consequences of a civil marriage are proprietary consequences that are mostly variable in that they depend on the choice of the parties before the marriage; in certain circumstances they can also be altered afterwards. 

*Kleopas Dumeni Kashala holds an LLB degree from the University of Namibia. The article is written in his personal capacity.