ANTE-NUPTIAL CONTRACTS

 

Getting married? You may want to consider an Ante-nuptial contract. (“ANC”)

It’s not just about what happens in the event of your death or a divorce, it’s about protecting your finances while you are married.

In order to draft an ANC for you, you need to decide under which marital regime you wish to get married. If you do not do an ANC, you will automatically be married in community of property.


In South Africa, two main marital property regimes exist, namely:

1. The marriage in community of property and,

2. The marriage out of community of property, where two options exist, namely:

2.1out of community of property with the application of the accrual system and,

2.2out of community of property without the application of the accrual system.


 1. A marriage in community of property has the following legal consequences:

1.1 All property at date of marriage as well as all property acquired after date of marriage (including gifts, donations, inheritances and remuneration) fall into a communal joint estate,

1.2. Each spouse owns a fifty percent undivided share in the communal joint estate,

1.3. Both spouses must consent (in writing) to transactions involving the:

 -disposal of assets of the communal joint estate,  -contracting of debts by the communal joint estate,   - performance of juristic acts,    -litigation against a third party.

1.4. Liquidation of the communal joint estate effectively means that both spouses are declared insolvent,

1.5. Upon death of either spouse the communal joint estate is administered leaving the other spouse unable to access the funds held in the communal joint estate.


 2. A marriage out of community of property:

2.1. A marriage out of community of property without the application of the accrual system has the following legal consequences:

2.1.1. All assets and liabilities of the spouses are generally kept separate from one another (“what is mine is mine and what is yours is yours”),

2.1.2. Spouses do not require each other’s consent when entering into certain transactions, as is the case in the marriage in community of property,

2.1.3. The estate of the other spouse is protected from insolvency,

2.1.4. Upon death of either spouse the deceased spouse’s estate is administered, without affecting the surviving spouse’s estate.



2.2 A marriage out of community of property with the application of the accrual system:

The marriage out of community of property with the application of the accrual system has the advantages of the marriage in community of property and out of community of property but, without the disadvantages thereof.

This regime basically operates as follows: when the marriage dissolves (death or divorce), the spouse’s estate which shows no growth or lesser growth acquires a claim against the other spouse for half of the difference between what has accrued to the two estates.

A marriage out of community of property with the application of the accrual system has the following legal consequences:

2.2.1. All assets and liabilities of the spouses are generally kept separate from one another and only the accrual is shared,

2.2.2. Spouses do not require each other’s consent when entering into certain transactions, as is the case in the marriage in community of property

2.2.3. The estate of the other spouse is protected from insolvency,

2.2.4. Upon death of either spouse the deceased spouse’s estate is administered, without affecting the surviving spouse’s estate.


 Author:  Aleshia van der Ploeg LLB. (RAU). Director VDP LEGAL CONSULTING (PTY) LTD

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