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Is Your Antenuptial Contract In Order

Amidst the excitement of an engagement and the build-up to the wedding day the importance of an Antenuptial Contract is often overlooked. While it can be a sobering thought when the focus is on the start of the marriage, it is wise for attention to be given to your matrimonial property system.

In South Africa we truly celebrate our rainbow nation when it comes to getting married. Our law recognises traditional marriages, customary marriages and same-sex partnerships. Depending on your particular circumstances, there are different matrimonial property systems that may be applicable to you.

The three main matrimonial property systems that may be considered are:

  • a marriage ‘in community of property’;
  • a marriage ‘out of community of property with the application of the accrual system’; and
  • a marriage ‘out of community of property excluding the accrual system’.

A marriage in community of property

In South Africa, this is the system that is automatically applicable when a marriage is concluded. If you and your spouse do not enter into an Antenuptial Contract your marriage will be ‘in community of property’. In short, all the assets and liabilities of both parties are considered as one and equally shared between the spouses on divorce, even if the assets were acquired before the marriage. All major decisions regarding the sale and purchase of assets and property, credit agreements, overdrafts etcetera must be taken together throughout the marriage where such a system applies. One of the disadvantages of a marriage in community of property is that if one spouse becomes insolvent, the entire estate and the other spouse are considered insolvent too. Upon the death of one of the parties or should the parties divorce, each party will receive half of the marital estate, both assets and liabilities.

Marriages out of community of property

Parties will have to consult an Attorney and sign a document known as an Antenuptial Contract (also known as an ANC or pre-nuptial agreement). The ANC is attended to by a Notary Public and registered in the Deeds Office. The ANC allows you as a spouse, to contract with your estate as you please and to be recognised as independent from the other spouses’ creditors.

Marriage out of community of property with the accrual system

With the application of the accrual system, the parties agree that they will share in the matrimonial estate as from the date of marriage. This means that upon death or divorce, each party takes out the asset value they brought into the marriage and thereafter shares in the value of the estate built together. This is a particularly good choice where one partner intends to take time away from their career to help at home.

Marriage out of community of property excluding the accrual system

With this system, parties are also considered as independent with regard to their estate and creditors. However, since the accrual system is specifically excluded, upon death or divorce, neither party will share in the others estate at all. This is a good matrimonial system for older couples who have independently built up considerable estates already and is often used where couples are getting married for a second or third time.

If you intend entering into an Antenuptial Contract, it is important that you make time to meet with an Attorney to discuss your options a good few weeks before the wedding to allow for all eventualities to be discussed and explained. Couples must sign the Antenuptial Contract before the actual wedding day.

We at Difford Underwood Inc. have years of experience in dealing with matrimonial law and are well placed to advise you as to all options available and to assist you in entering into an Antenuptial Contract that meets your specific needs as a couple.

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