The purpose of the marriage contract is to regulate assets between spouses, specifically upon death or divorce. In South Africa, there are three ways in which people can get married, being in community of property, out of community of property without accrual, and out of community of property with accrual.
In Community of Property
Unless an antenuptial contract is signed, a marriage will automatically be one of in community of property. This means that all assets and liabilities become joined within the marriage, and includes all assets and liabilities accrued before and during the marriage. Each spouse has an undivided share in all the assets as well as in all liabilities of the joint estate in this marriage contract. All that is needed to get married this way is to sign the Marriage Register at Home Affairs. No specific contract needs to be signed.
Upon divorce, all assets will be divided equally, irrespective of each spouse’s contribution. Getting married in this way may seem fair, but the risk arises when it comes to liabilities. The creditors of the spouse who incurred the debt will have recourse to claim from the joint estate of the spouses. Further, where one spouse becomes insolvent, it affects the joint estate in that the other spouse will too then become insolvent. Certain contracts that a spouse may enter into will also require the consent of the other spouse, to bind the joint estate.
One can also get married in terms of Customary Law, and where certain formalities have been complied with, spouses will be deemed to be married in community of property, without any registration at Home Affairs.
Out of Community of Property
Where people marry out of community of property and choose this regime for their marriage contract, an ante nuptial contract, or ANC, is drafted by a Notary and is signed before marriage by the prospective spouses. Concluding an ante-nuptial contract will ensure that each party retains his or her full estate, which includes everything that they had before the marriage and that which they accrued during the marriage. The liabilities of the spouses are also kept separate from each other.
Each spouse also does not need the permission of the other to enter into their own personal contracts during the marriage. Over and above retaining their individual estates, spouses can also exclude specific assets. Despite this, assets can also be acquired together, where the spouses will own these assets jointly and as co-owners.
Upon divorce, each party will retain their respective assets and liabilities.
Out of Community of Property including Accrual
The accrual system must specifically be excluded from the marriage contract, failing which it will automatically apply. The difference with having the system of accrual apply is that although each spouse’s assets are their own that they bring into the marriage, everything that they accrue during the marriage will be shared equally if the marriage dissolves by either death or divorce. This being the case, there are still certain assets that are excluded from the assets to be shared, such as inheritance.
The effects of marriage are seen at death or divorce, and deciding how your assets will be dealt with can ensure the smooth division of the assets, in the fairest way, to suit your circumstances.
Contact Michael Krawitz Attorneys
Contact Michael Krawitz Attorneys in Sandton for advice and to see how they can assist you with the marriage contract that you need.
