IS YOUR HAPPILY EVER AFTER SECURED BY AN ANTE-NUPTIAL CONTRACT?

You decide to tie the knot and finally get married to your soul mate. The church and venue is booked and paid for. The dress, caterers, flowers and the photographer is all arranged. You are sure that you covered every detail of the wedding.

But then your friend asks:

  1. Which matrimonial property regime will regulate your marriage?
  2. Will you include or exclude the accrual system?
  3. Have you consulted with an attorney to have your ante-nuptial contract prepared and registered?

In South Africa, there are three possible matrimonial property regimes to choose from:

  1. In community of property;
  2. Out of community of property including the accrual system; and
  3. Out of community of property excluding the accrual system.
  1. A marriage in community of property
  • This is an automatic matrimonial property regime and can only be excluded by a written ante-nuptial contract;
  • All property at date of marriage as well as all property that you acquired after the date of marriage fall into a joint estate;
  • Each spouse owns an undivided 50% share in the assets and liabilities of the joint estate;
  • In terms of Section 15 of the Matrimonial Property Act 88 of 1984 spouses may perform any juristic act with regards to the joint estate without the consent of the other spouse but both spouses must consent in writing to:
  1. Sell, buy, mortgage or burden in any way, immovable property forming part of the joint estate;
  2. Sell or pledge any movable assets of the joint estate that is held mainly as investment;
  3. Enter, as a consumer, into a credit agreement to which the provisions of the National Credit Act applies;
  4. Bind him/herself as surety;
  5. Institute legal proceedings against another person or defend legal proceedings instituted by another person (with certain exceptions).
  • Sequestration of the joint estate means that both spouses are declared insolvent;
  • Upon death of either of the spouses the joint estate is administered and not the only the estate of the deceased.
  1. A marriage out of community of property including the accrual system
  • The accrual system is automatically included in an ante-nuptial contract unless expressly excluded;
  • The accrual is only calculated upon divorce or death of one of the spouses.
  • The spouse whose estate shows a smaller accrual than the estate of the other spouse, acquires a claim against the other spouse or the estate of the other spouse for an amount equal to half of the difference between the accrual of the respective estates of the spouses.
  • All assets and liabilities of the spouses are kept separate from one another. In other words “what is mine is mine and what is yours is yours”;
  • Two separate estates are established;
  • Spouses do not require each other’s consent when performing juristic actions and when entering into certain transaction as is the case with a marriage in community of property;
  • If one spouse’s estate is sequestrated the other spouse’s estate is protected from insolvency;
  • Upon death of a spouse, only the deceased spouse’s estate is administered, and is the surviving spouse’s estate not affected of coarse subject to the accrual.
  1. A marriage out of community of property excluding the accrual system
  • The accrual system must be expressly excluded;
  • All assets and liabilities of the spouses are kept separate from one another.
  • Two separate estates are established;
  • Spouses do not require each other’s consent when performing juristic actions and when entering into transactions;
  • If one spouse’s estate is sequestrated the other spouse’s estate is protected from insolvency;
  • Upon death of a spouse, only the deceased spouse’s estate is administered, and is the surviving spouse’s estate not affected.

The ante-nuptial contract must be signed by you and your future spouse before a notary before the marriage is concluded and it must be registered in the Deeds Office thereafter. If you decide not to have an ante-nuptial contract registered you will be able to change your marriage property regime at a later stage, but only after you obtain a court order to this effect.

Contact Burden Swart & Botha Attorneys today to draft and register your ante-nuptial contract in order to secure your happily ever after.

Soekie Riekert Botha

Partner

soekie