If you and your spouse are struggling with debt, your type of marriage determines everything about how debt review works for you as a couple. Whether both of you must apply, whose credit profile is affected, and how your debts are treated all depend on whether you are married in community of property or out of community of property. Understanding these distinctions is essential before you begin the debt review process.
Marriage in Community of Property (COP)
If you did not sign an antenuptial contract (ANC) before your wedding, you are married in community of property. This is the default marriage regime in South Africa under the Matrimonial Property Act. Most South African couples fall into this category.
Under a COP marriage, the assets and liabilities of both spouses are merged into a single joint estate. There is no legal distinction between "his debt" and "her debt" — everything belongs to the joint estate.
This has significant implications for debt review:
- Both spouses MUST apply together. Because the estate is joint, one spouse cannot enter debt review without the other. The debt counsellor must assess the combined financial position.
- All assets and liabilities are merged. Every debt — including debts taken out before the marriage — forms part of the joint estate.
- Both are jointly and severally liable for ALL debts. This means creditors can pursue either spouse for the full amount of any debt, even if only one spouse signed the credit agreement.
- One single monthly instalment covers both spouses. The debt counsellor creates a single restructured repayment plan based on the combined income and combined debts.
- If one spouse becomes insolvent, both are affected. Because the estate is shared, financial distress for one spouse is financial distress for both.
Marriage Out of Community of Property (ANC Without Accrual)
If you signed an antenuptial contract (ANC) without the accrual system before your wedding, each spouse maintains a completely separate estate. Your assets are yours, your debts are yours, and your spouse's finances are entirely independent from yours.
For debt review, this means:
- Only the indebted spouse needs to apply. If only one spouse is over-indebted, they can enter debt review independently.
- The other spouse's credit profile is NOT affected. The debt review flag is placed only on the applying spouse's credit record.
- Each spouse is responsible for their own debts only. Creditors cannot pursue the non-applying spouse for debts that belong to the other.
- Exception: joint debts. If both spouses co-signed a loan (such as a joint home loan or co-signed vehicle finance), that specific debt involves both parties. The non-applying spouse may still be pursued for the joint debt.
Marriage Out of Community of Property (ANC With Accrual)
An ANC with accrual is the most common type of antenuptial contract in South Africa. During the marriage, each spouse maintains a separate estate — just like ANC without accrual. However, when the marriage ends (through death or divorce), the growth (accrual) of each estate during the marriage is calculated and shared.
For debt review purposes during the marriage:
- The same rules apply as ANC without accrual. During the marriage, estates are separate and only the indebted spouse needs to apply for debt review.
- Growth is shared only at dissolution. The accrual sharing only happens when the marriage ends — it does not affect debt review during the marriage.
- Only the indebted spouse applies unless there are joint debts. Co-signed or joint debts are the only exception that may involve the other spouse.
Comparison: Marriage Types and Debt Review
The table below summarises how each marriage type affects the debt review process:
| Factor | COP (No ANC) | ANC Without Accrual | ANC With Accrual |
|---|---|---|---|
| Must both spouses apply? | Yes — mandatory | No — only indebted spouse | No — only indebted spouse |
| Estates | Joint (merged) | Separate | Separate (during marriage) |
| Liability for debts | Joint and several for ALL debts | Each responsible for own debts | Each responsible for own debts |
| Other spouse's credit affected? | Yes — both flagged | No (unless joint debts) | No (unless joint debts) |
| Pre-marriage debts | Become part of joint estate | Remain with original spouse | Remain with original spouse |
| Joint debts (co-signed) | Included in joint plan | Both spouses involved for that debt | Both spouses involved for that debt |
| New credit during debt review | Neither spouse can apply | Non-applying spouse can apply | Non-applying spouse can apply |
| Insolvency of one spouse | Both affected | Only insolvent spouse affected | Only insolvent spouse affected |
Joint Debt vs Individual Debt
Regardless of your marriage type, it is important to understand the difference between joint debt and individual debt — because joint debts can bring the non-applying spouse into the process even in an ANC marriage.
Individual debt is any credit agreement signed by only one spouse. This includes personal loans, credit cards, store accounts, or vehicle finance in one name only. In an ANC marriage, only the signing spouse is liable.
Joint debt is any credit agreement where both spouses are co-signatories or co-applicants. Common examples include a joint home loan (bond), a vehicle financed in both names, or a loan where one spouse stood as surety for the other. Both spouses are liable for the full amount of a joint debt, regardless of marriage type.
If you are married with an ANC and only one spouse is applying for debt review, any joint debts must still be addressed. The non-applying spouse remains liable to the creditor for the joint debt and may be pursued separately if payments are not made.
Can One Spouse Apply for Debt Review Without the Other?
This is one of the most common questions married couples ask, and the answer depends entirely on your marriage type:
- Community of Property (COP): No. Both spouses must apply together. The joint estate means the financial position of both spouses must be assessed as one. A debt counsellor cannot accept an application from only one spouse in a COP marriage.
- ANC (Without or With Accrual): Yes. Because estates are separate, the indebted spouse can apply independently. The other spouse's income, expenses, and debts are not part of the assessment — unless there are joint debts that need to be included.
Even in ANC marriages, it is often advisable for both spouses to be involved in the process. If both are struggling financially, a debt counsellor may recommend that both apply separately to ensure comprehensive debt relief for the household.
Practical Advice for Married Couples Considering Debt Review
If you are married and considering debt review, here are the most important steps to take:
- Talk to your partner openly. Debt review affects both of you. Have an honest conversation about your combined financial situation — total income, expenses, and all debts. Hiding debts from each other only makes the process harder.
- Find your marriage certificate. Your debt counsellor will need to verify your marriage type. If you signed an ANC, locate the original document.
- Bring the antenuptial contract (if applicable). If you signed an ANC before your wedding, bring it to the assessment. It confirms whether the accrual system applies and determines which rules govern your debt review.
- Discuss your specific situation with a debt counsellor. Every couple's situation is different. A registered debt counsellor can assess your marriage type, your individual and joint debts, and advise on the best approach for your household.
- List all debts — individual and joint. Make a complete list of every credit agreement, noting whether it is in one name or both names. This helps the debt counsellor determine the correct approach from the start.
Not sure which type of marriage you have? If you did NOT sign an antenuptial contract (ANC) before your wedding, you are married in community of property — and both of you must apply for debt review together. If you are unsure, check with your debt counsellor or request a copy of your marriage registration from the Department of Home Affairs.
Want to understand the debt review process in more detail? Read our complete guide: What Is Debt Review and How Does It Work?
Frequently Asked Questions
Do both spouses have to apply for debt review if married in community of property?
Yes. If you are married in community of property (COP), both spouses must apply for debt review together. Because your estates are merged into a single joint estate, one spouse cannot enter debt review without the other. The debt counsellor will assess the combined income, expenses, and debts of both spouses.
Will my spouse's credit score be affected if I apply for debt review?
It depends on your marriage type. If you are married in community of property, both credit profiles will be flagged because both spouses must apply together. If you are married out of community of property (ANC), only the applying spouse's credit profile is affected — unless you share joint debts such as a co-signed home loan.
What happens if we get divorced during debt review?
If you divorce during debt review, the debt counsellor and the court will need to reassess the situation. For COP marriages, the joint estate must be divided and the debt review plan restructured to reflect each party's share of the debt. It is important to inform your debt counsellor immediately if divorce proceedings begin.
Can my spouse take out new credit while I am under debt review?
If you are married in community of property, neither spouse can take out new credit while under debt review — the restriction applies to both. If you are married out of community of property (ANC), the spouse who is not under debt review can still apply for credit independently, as their estate is separate.
What documents do we need to bring to our debt review assessment?
Both spouses should bring their ID documents, marriage certificate, antenuptial contract (ANC) if one exists, proof of income (payslips or bank statements), a list of all debts and credit agreements, and a breakdown of monthly living expenses. The marriage certificate and ANC are critical for determining which rules apply to your situation.
