Debt Review for Married Couples in South Africa

Your marital property regime decides the shape of the application

The National Credit Act does not set out separate rules for married consumers. What determines whether you apply together or separately is your matrimonial property regime, because that is what determines whose estate the debts sit in.

If you do not know your regime, check whether you signed an antenuptial contract before the marriage. No antenuptial contract, in a South African civil marriage, generally means in community of property.

Married in community of property

In community of property, you and your spouse share a single joint estate, and the debts are joint estate debts. In practice this means debt review is handled as a joint application covering both of you, because there is no sensible way to restructure half of a single estate.

We put that as practice rather than as a rule with a section number, because the National Credit Act does not itself legislate how married consumers apply - the consequence flows from matrimonial property law. What the NCR fee guideline does do is expressly contemplate joint applications, providing for the restructuring fee to be adjusted where one is required, and industry bodies publish a separate, higher restructuring cap for joint applications by couples married in community of property. Confirm the approach with your debt counsellor for your specific marriage.

The practical consequences: both incomes and both sets of living expenses go into the affordability assessment, both of you are bound by the section 88(1) restriction on new credit, and both of you are recorded as under debt review while it runs.

Married out of community of property

Out of community of property, with or without accrual, you each have your own estate. Your debts are your own. One spouse can apply for debt review without the other, and only the applying spouse's credit agreements are re-arranged.

The non-applying spouse is not put under debt review and is not subject to the section 88(1) new-credit restriction.

In practice a debt counsellor will still want a full household picture, because household income and expenses affect what is genuinely affordable. Providing that information is not the same as your spouse becoming a party to the application.

Things worth raising with your debt counsellor

• Sureties. If you signed surety for your spouse's debt, or for a business, that is your obligation and regulation 24 requires it to be listed - regardless of your marital regime.
• Joint accounts and co-signed agreements. Where you are both parties to the same credit agreement, one spouse going under review does not remove the other's liability under it.
• Which regime you are actually in. People are sometimes wrong about this. Find the antenuptial contract, or confirm the position, before you apply.
• Customary and religious marriages, and civil unions. These can have different property consequences. Raise the specifics rather than assuming the civil-marriage default applies.

We are being deliberately careful here, because matrimonial property law interacts with credit law in ways that turn on your specific marriage. If your situation is not the straightforward case, get advice from an attorney as well as a debt counsellor.

Frequently asked questions

Tools to help

Related guides

Check anything here with the regulator