Call us
Durban
+27 (0)31 702 5311

Options on Marriage

Entering into an antenuptial contract has a direct effect on your assets and estate on marriage.

What are your options…?

1. Marriage in community of property.
2. Marriage out of community of property (in terms of an Antenuptial Contract) (i) with the accrual system (ii) without the accrual system).

What steps do you follow for one of the above options to apply to your marriage?

If you marry without any form of antenuptial contract, your marriage is in community of property.
If you conclude an antenuptial contract prior to your marriage, the accrual system will apply unless expressly excluded in the contract.

Now for more detail…

1. Marriage in Community of Property

(i) Both spouses share the assets and liabilities equally.

(ii) While both spouses have equal powers of administration and can act independently of each other, consent of the other spouse is required for a number of transactions, e.g.:

a) Written consent for important transactions such as those dealing with fixed property, suretyships and credit agreements.

b) informal consent for less important transactions including, for example, the sale of household furniture. This type of marriage gives legal and economic equality to both spouses. During the marriage and on its dissolution (by divorce or death) both partners are usually entitled to a half share of the joint estate but both are liable for debts and the joint estate of the spouses is sequestrated upon insolvency.

2. Marriage out of Community of Property with the Accrual System

(i) Each spouse retains control of his or her separate property and enjoys the increase thereof or suffers alone any decrease thereof and is responsible for his or her debts.

(ii) On dissolution of marriage, the accrual ie. the increase of the asset value of the marriage is shared in proportion to the accrual stipulated in the antenuptial contract, usually equally. You may specify ( in the antenuptial contract ) that certain assets brought into the marriage or a specified value thereof (a commencement value) be excluded from operation of the accrual. This system enables each spouse to retain his or her separate property but to share increases. If no commencement value is specified in the antenuptial contract or no assets or profits therefrom are specifically excluded, the entire marriage asset value ( excluding certain statutory exceptions ) will be regarded as having accrued after the date of marriage and be liable to be divided on termination of the marriage.
This system also protects each spouse against debts of the other.

REMEMBER:

If you do not want the accrual system to apply, it must specifically be excluded in the antenuptial contract.

3 .Marriage out of Community of Property without the Accrual System

This achieves a complete separation of assets of spouses – not only those brought into the marriage but also those acquired during the marriage. There is no sharing and on dissolution of the marriage, neither spouse has any claim against the assets of the other. Similarly, neither spouse is liable for the debts of the other. This highlights some important aspects of the Matrimonial Property Act.

For detailed information, please make an appointment.

Our current charge for a standard Antenuptial Contract is R2,250.00. inclusive of VAT and registration fees.

 

Print Friendly, PDF & Email

Legal Topics

For the information of our clients, we have prepared articles on certain aspects of law that may be of interest. Please note that these are not detailed expositions of the law but are for information and interest only. Please obtain professional advice before you act in any way.