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DIVORCE SPECIALISTS

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ANTE-NUPTIAL AGREEMENTS

Getting married isn’t only about planning the party and narrowing the guest list, the most important thing is often forgotten, the ante-nuptial contract.

 

What is an ante-nuptial contract? To simplify it, it is a contract that protects parties’ assets. The contract furthermore determines the relevant marital regime that will govern your marriage.

An ante-nuptial contract, must be drawn up by an attorney and executed and registered by a notary. Upon the event that you do not enter into an ante-nuptial contract alternatively you do not have it registered, you will be married in community of property which will be discussed herein below.

The different marriage regimes to choose from in South Africa:

  • Marriage in community of property;

  • Marriage out of community of property without the accrual;

  • Marriage out of community of property with the accrual.

Marriage in community of property


Marriage in community of property is combining both party’s assets and liabilities into one big pot. There is no separation between either party’s assets as the assets become jointly owned by both parties.

Advantages:

  • There will be no contract;

  • Both parties will get an equal share at divorce.

Disadvantages

  • If you have more assets you have to share it with your spouse;

  • You are jointly liable for each other’s debts;

  • To administer the deceased estate is difficult;

  • Need other spouses consent to transact.

 

Marriage out of community of property without the accrual

Each party keeps their own separate estate regardless of which assets and liabilities they had before, during or after the marriage. 

Advantages

  • Each person keeps their own assets;

  • You do not require the consent of the other spouse to transact;

  • Each person’s debts are their own.

Disadvantages

  • The economically weaker spouse, does not get to share in the estate of the stronger spouse;

  • Ante-nuptial agreement must be concluded which comes at a fee.

Marriage out of community of property with the accrual

Each party is free to contract during the subsistence of the marriage, however at divorce, the net value of each estate is calculated. The bigger estate must then transfer half of the difference to the smaller estate. Leaving both parties at an equal footing at divorce.

 

Advantages

  • Each person has control over their own assets;

  • The parties share in the increase of their assets;

  • Spouses do not share in assets they accumulated before marriage (if excluded);

  • Each party is liable for their own debt.

Disadvantages

  • The economically stronger spouse has to share the profits that they made during the marriage;

  • Ante-nuptial agreement must be concluded which comes at a fee;

  • At divorce one has to calculate the accrual which is a difficult and sometimes costly exercise.

It is common to use an ante-nuptial agreement to exclude certain items from the accrual system, some of the examples are:

  • Inheritances, legacies and donations;

  • Donations between the spouses such as wedding gifts, furniture and household effects, policies of insurance;

  • Exclusion of specific assets such as a business, immovable property, trusts etc;

  • Income from excluded assets.

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