By Tamaryn Campbell (Attorney l Conveyancer l Notary)
Are you getting married?
There are various options available when getting married and certain consequences linked to the specific regime.
1. IN COMMUNITY OF PROPERTY:
This is an automatic marital regime, when parties to a marriage do not enter into an antenuptial contract (otherwise known as a pre-marital agreement). When entering a marriage in community of property, the parties each have their own assets and / or own estates. After the date of the marriage the two estates join and become a joint estate (provided no antenuptial contract is concluded). This means that in the event of either of the spouses being declared insolvent, both of the parties will be insolvent.
Should the parties get divorced, the estate is split between the spouses. Should one of the parties pass away, the surviving spouse will be entitled to half the estate by virtue of the marriage in community of property and the other half by virtue of the will (provided the deceased bequeathed their half share to their surviving spouse).
2. ANTENUPTIAL CONTRACT WITHOUT THE APPLICATION OF THE ACCRUAL SYSTEM:
When entering into a marriage with an antenuptial contract without accrual, each parties’ respective assets remain separate and the exclusive property of the holder and upon death, the spouse may bequeath their estate to their chosen beneficiaries in terms of their will. If the parties to the marriage get divorced, there will be no automatic claim to each other’s estates and the parties will have to enter into a settlement agreement. Normally when there are children involved, maintenance claims will take their course.
3. ANTENUPTIAL CONTRACT WITH THE APPLICATION OF THE ACCRUAL SYSTEM:
When entering a marriage with an antenuptial contract with accrual before the marriage each spouse owns their own assets and / or estate. Should the parties entering into the marriage not have a net asset value at the start, each party will enter the marriage with a NIL balance and there may be no exclusions from the marriage. Should the parties have an asset portfolio before marriage, they can choose to exclude these specific assets from the marriage as well as the future growth in those assets.
When entering into an antenuptial contract, the validity of the contract is essential to determine whether you are in fact married with or without a valid antenuptial contract. The antenuptial contract must be signed/ executed prior to the date of marriage in front of a notary public. The antenuptial contract will then be lodged and registered in the relevant deed’s office. This must be done within 3 months from date of signing the antenuptial contract (in the Republic of South Africa) and within 6 months (outside the Republic of South Africa).
