Whether your spouse needs to be included in debt counselling depends on the type of marriage regime you’re in.
Married in community of property (COP): Yes - the application is treated against the joint estate, so both spouses are included.
Married out of community of property (with antenuptial contract): Generally, no - the indebted spouse applies alone, unless there are joint debts, co-signed loans, or the spouse has offered surety, in which case the non-debtor may be included.
Debt can be tough on any marriage, and it’s normal to wonder how your debt might affect your spouse. In South Africa, if you’re married in community of property (COP), you and your partner share everything – not just your assets but your debts, too. This means if one of you struggles with debt, it impacts both of you.
A common question couples ask is, "If I go under debt counselling, does my partner have to as well?"
In this article, we’ll break down how debt counselling in South Africa works for couples married in and out of COP – and clear up what it means for you and your spouse.
What is community of property (COP)?
In South Africa, couples who marry without an antenuptial contract are automatically married in COP. This means everything you own – and everything you owe – is shared. If one partner has debt, it automatically becomes part of the joint estate.
By contrast, marrying out of COP means spouses keep their assets and liabilities separate during the marriage. To legally marry out of COP, you need to sign an antenuptial contract (ANC).
There are two types of ANC:
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ANC with accrual, ensuring separate ownership of assets during the marriage, while allowing for shared growth in the value of estates
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ANC without accrual, ensuring complete separation of assets throughout the marriage, without sharing growth in asset value
Can I apply for debt counselling if I am married in COP?
Yes. Because your finances are joined, a debt counsellor must include your spouse in your application for debt counselling, too.
Both partners must give their consent, share proof of income, and allow the debt counsellor to look at all debts and expenses. This way, the debt counsellor can check what the couple, as a unit, can afford to repay.
Why does my spouse need to give consent to debt counselling?
When you go into debt counselling – also known as debt review – it affects both of you if you’re married in COP. Your credit records, how creditors are paid, and even court procedures can all change. Because of this, the law requires both partners to agree and provide the necessary documents.
Marital property regimes and debt counselling at a glance:
COP – joint estate
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Your assets and liabilities are pooled
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Creditors can pursue the estate
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A debt counsellor can create a repayment plan that protects the estate as a whole
Out of COP, with or without accrual (ANC)
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Your estates are separate
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Your spouse is not automatically included in debt counselling, unless they are a co-debtor or standing surety for you
Does a non-debtor partner married under an ANC need to apply for debt counselling? If you are married with an ANC, then the non-debtor spouse does not have to apply unless they have co-signed certain debts. This is because, under an ANC, each spouse’s estate remains separate, meaning their debts are their own responsibility.
How debt counselling works for couples married in COP
If you are married in COP and entering debt counselling, both partners must apply together. Even if only one partner created the debt, the law treats both as being responsible.
Why is this important?
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If one partner enters debt counselling, both partners’ credit records will reflect this.
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Creditors can pursue both partners for repayment.
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The indebted partner needs the other partner’s consent before the application can go ahead.
When couples married in COP apply for debt counselling, both partners must share income, expenses, and debt information with their debt counsellor. The debt counsellor uses this information to create a budget and a debt repayment plan that will cover all debts affordably. This plan will include the couple’s joint and individual debts. Let’s take a closer look at what this process could entail for you and your spouse.
Step 1 – Assessment of the joint estate
Your debt counsellor will look at both your and your spouse’s income, expenses, and debts. This will help determine what you can afford to repay each month. Before you start debt counselling, it helps to know your current credit score to establish a financial starting point. It also helps to understand how debt problems have affected your creditworthiness. Check your credit score today.
Step 2 – Proposal and creditor engagement
Your debt counsellor will talk to your creditors with a view to reducing instalments and interest, to make debt repayment more manageable for you. They will prepare a proposed repayment plan, which your creditors will review.
Step 3 – Court/consent order and one monthly payment
If needed, your new repayment plan is confirmed by the court. Once a month, a single repayment amount is made to a Payment Distribution Agency (PDA), which is regulated by the National Credit Regulator (NCR). The PDA splits the payment and pays all your creditors – you don’t need to make any payments directly to your creditors.
Step 4 – Staying the course and completion
Keeping up with your payments is essential. When you have made all payments, you’ll receive a clearance certificate and your credit record will be updated.
Find out more about what happens once debt review is over
Documentation checklist for a joint debt counselling application
Both spouses will need to provide the following documents:
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South African identity books or cards
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Marriage certificate
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Proof of residence (utility bill or municipal account)
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Municipal rates and taxes (for property owners)
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Payslips and income proof
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Employment contracts or letters, especially if you or your spouse has a new job or are self-employed
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Insurance policies (life, vehicle, or household – all affecting affordability)
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Latest statements for all debts (joint and individual)
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All household expenses (utilities, transport, childcare, etc.)
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School fee agreements
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Any maintenance court orders
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Banking details and three to six months’ bank statements to verify income and spending patterns
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Investment or asset statements, including equity investments, pension funds, etc.
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Asset valuations (property, vehicles, or investments), if applicable
What are the advantages of debt counselling for married couples?
Debt counselling can be a lifeline for married couples who are struggling with too much debt. The benefits include:
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Lower monthly repayments. Credit providers often agree to reduced instalments and interest so you can afford your payments.
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Legal protection. Once under debt counselling, creditors can’t contact you or take legal action against you, or repossess assets if you stick to the payment plan.
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One monthly payment. Instead of paying many creditors separately, you make a single payment through an NCR-approved PDA.
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A path to becoming debt free. With discipline and time, you can settle your debts and get a clearance certificate, which restores your credit record.
Do you think you may need debt counselling? Get a free assessment today.
What are the disadvantages of debt counselling for married couples?
While debt counselling is an excellent solution if you’re overindebted, consider the following:
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Your credit record will be flagged. You won’t be able to apply for new credit while under debt counselling. This protects you from further debt, but it limits borrowing.
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The debt counselling journey takes time. The process can last a few years, depending on how much debt you have and what you can afford to repay.
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One partner may not be as committed to the process. If you are married in COP, both spouses are included in debt counselling, whether they want to be or not. This also means both credit records are affected.
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There is stigma associated with debt counselling. Some people still view debt counselling negatively – but it is a legal, regulated way to get out of debt.
Common debt counselling scenarios for couples
Let’s examine some typical scenarios and outcomes:
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One spouse has most of the debt, the other has a stable income: If you’re married in COP, the new debt repayment plan will cover both partners, whose combined income will secure an affordable, workable solution.
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Surety/co-signed debts under an ANC: If you signed as surety or a co-debtor, you may still be responsible for your spouse’s debt, even if your estates are separate. Ask a debt counsellor or legal practitioner what to expect.
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You ignore creditor notices: This can escalate to legal action, affecting both parties if married in COP. Debt should never be ignored as there are consequences for missed debt payments. It’s also important to know that debt can only be written off under very specific conditions, so it pays to deal with debt immediately.
Speak to DebtBusters today
Many clients come to debt counselling after receiving a Section 129 notice from their creditors – a formal letter of demand creditors must send before taking legal action against you. Such a notice indicates you’re in serious financial trouble.
Learn more about how to respond to a Section 129 notice.
In the meantime, our comprehensive debt counselling guide can help you understand what debt counselling is and how it can help you.
