Getting married is a joyous occasion and during this time of elation, excitement and celebration it’s hard to imagine that things can go wrong.
However, the blunt truth is that they can and for this reason it is vital that both parties carefully consider which matrimonial property regime (ante nuptial contract) they wish to be applicable to their marriage.
Now many of us have heard of ante nuptial contracts (ANC) yet don’t really understand what they’re all about! But it really isn’t all that complicated. Basically an ANC is a contract entered into by a couple prior to marriage and in layman’s language it determines who owns what upon separation and whether you are responsible for each other’s debt.
In South Africa there are three basic ANC options namely (a) in community of property; (b) out of community of property with exclusion of the accrual system; and (c) out of community of property with inclusion of the accrual system.
Marriages in community of property:
Marriages in community of property:
It’s important to note that if you marry without an ANC, you are automatically married in community of property.
This means that all property owned by either spouse becomes part of your joint estate upon marriage, irrespective of whether it is owned before your marriage or is acquired thereafter. In other words, both spouses have equal rights of ownership and administration over assets and all profits made and liabilities incurred by either spouse form part of the joint estate.
The negative aspect about being married in community of property is that assets in the joint estate are exposed to the claims of creditors of both spouses and little can be done to protect against this.
Marriages out of community of property excluding the operation of the accrual system:
This type of ANC allows each spouse to retain ownership of their separate estates. This means that each party will retain as part of his/her separate estate anything that he/she possessed before the marriage as well as anything he/she acquired during the marriage.
It also means that neither party will be liable for the other’s debts and there’s no sharing of profit or loss.
Although this may sound a little more fair, this option has its downside too as it can be very problematic for estate planning and can result in inequitable financial consequences for either one of the spouses upon divorce as the court is not permitted to alter the division of assets on the basis of equity or fairness.
Marriages out of community of property with the inclusion of the accrual system:
Most experts recommend this ANC as it offers the best of both the other types of ANC namely it protects the assets of one spouse from the creditors of the other while simultaneously incorporating the ethic of sharing which is the basis of a marriage that is in community of property.
With this type of contract neither spouse will be liable for the other spouse’s debts, however they will share what they have acquired during the marriage should the marriage dissolve.
It is important to note however that you have to expressly exclude the operation of the accrual system when you enter into an ANC because should this not be done then you are deemed to have included the accrual system.
Getting an ANC is also not as complicated as people make it out to be. You and your partner consult a family-law attorney who can explain how each system operates and thereafter draft the ANC in accordance with your particular circumstances and needs. He’ll also be responsible for ensuring that the required formalities are complied with.
Please note: This summary of matrimonial property regimes is for information purposes only and provides only a very brief summary of the relevant law. Should you still have questions, ask your legal expert.