Marriage in community of property
Should you not enter into an antenuptial contract, or not follow the correct procedure required for the registration of an antenuptial contract, the marriage will be in community of property.
The consequences of such a marriage are as follows:
- All assets already acquired as at the date of the marriage, and that which are acquired after the marriage, will form part of the joint estate and you and your spouse will each be entitled to 50% of the said estate.
- You will consequently share all assets as well as all liabilities equally.
- One should also keep in mind that there are various actions that cannot be taken without the consent of the other spouse, such as selling your immovable property. For more examples as to when the spouse would have to consent, see Section 15 (2) of the Matrimonial Property Act, 89 of 1984.
To change your status from marriage in community of property, to that of out of community of property, one has to apply to court in terms of Section 21(1) of the Matrimonial Property Act for a court order authorising such a change.
It is therefore imperative for the parties to consider all aspects and consequences of a marriage in community of property before the marriage is entered into, as changing the marital regime afterwards is a costly and time consuming procedure.
Marriage out of community of property
If you are to register an antenuptial contract, the parties agree to various terms relating to each party’s individual estate, and consequently you will be married out of community of property.
It is important to note that an antenuptial contract cannot contain terms that are contra bonos mores, meaning against the good morals of the public. It is merely a contract between the parties, confirming each will have his/ her own estate and hence no joint estate, as in the case of a marriage in community of property, will exist.
You do, however, have to decide between two options before registering an antenuptial contract:
Out of community of property without the application of the accrual system
This simply means that upon death or divorce, each spouse will be entitled to his/ her own estate, own assets and liabilities acquired throughout the marriage, and will not be able to claim anything from his/ her spouse.
Out of community of property with the application of the accrual system:
Once the marriage is dissolved through death or divorce, each spouse will be entitled to his/ her own estate. However, the spouse with the least amount of increase/ accrual will be entitled to half the increase/ accrual of that of their spouse.
If you elect to register and antenuptial contract with the inclusion of the accrual system there are a few important aspects to take note of:
- Inheritances, donations or legacies acquired during the subsistence of the marriage will not be included when calculating the accrual, unless otherwise stated. See Section 5 Matrimonial Property Act for a more detailed explanation.
- One should consider whether you would like to specifically exclude certain assets from the calculation of the accrual, for example property already registered in your name, motor vehicles, expensive jewellery etc;
- If you already own certain assets as mentioned above, one should consider including the value of these assets in your antenuptial contract as the “net commencement value” of your estate as at date of marriage. These assets will then be adjusted accordingly with the consumer price index and inflation when the accrual is calculated.
Calculating the accrual
Consequently, on the date of divorce or death, the accrual will be calculated and the net commencement value as stated in the antenuptial contract will be used as the starting value for the accrual calculation.
Your estate’s final net value as at the date of divorce or death will then be compared to your net commencement value. The assets you excluded in the antenuptial contract will therefore not be taken into account when the final net value of your estate is determined.
The estate with the most growth (highest accrual), is obliged to pay the estate with the least growth (least accrual), half of its growth.
Should the parties have various assets and are uncertain as to whether they should include or exclude these assets in the antenuptial contract, it is best to contact a Notary Public in order to discuss the various implications. The parties must be cognisant of the fact that an antenuptial contract remains an agreement between the parties, and therefore they confirm and agree to the terms as they wish. The Notary Public merely guides the parties and provide them with various options.
Registering an antenuptial contract
Section 87 of the Deeds Registry Act 47 of 1937 sets out the registration requirements for the registration of an antenuptial contract:
- The contract must be entered into/ signed before the marriage,
- The said contract must further be executed in front of two competent witnesses and attested by a notary before the marriage,
- Once executed the contract must be registered in the Deeds Office within 3 months of executing the contract.
In closing, it is clear from the various legislation applicable that entering into an antenuptial contract is not merely a standard, run of the mill process, and due regard must be given to various aspects. The parties about to be married must be aware of all possible consequences should they enter into an antenuptial agreement, as well as if they do not choose this route.
Shirande Schmidt is an attorney, notary public and conveyancer. She can be contacted on email@example.com.
This article is intended for information purposes only and is a brief exposition of the abovementioned legal position. Mention is not necessarily made of all the finer nuances as set out in the abovementioned legislation. This article should under no circumstances be construed as formal legal advice.
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