Marriage Contracts Explained
An ANC stipulates which marriage system will apply to the prospective marriage, and therefore how the patrimonial consequences will be regulated.
In South Africa there are various options:
1. Marriage In Community of Property
This regime will apply if parties fail to register an ANC before the date of the marriage. This system will cause the parties to share equally in all assets and liabilities, despite their contributions. Both parties need to consent to the other’s contractual affairs and both are liable in case of insolvency and both share a bad credit record. If the marriage be terminated, the parties will share all assets and liabilities on a 50/50 basis.
2. Marriage Out of Community of Property – With Accrual
This system retains the two separate estates of the spouses, which are administered independently. The respective spouses are not liable for one another’s debts. If the marriage is terminated, the spouse whose estate increased the least is entitled to claim half of the amount that the other spouse’s estate increased. Certain assets may be excluded from the accrual system and the commencement value of both parties’ estates at the date of marriage is relevant.
3. Marriage Out of Community of Property – Without Accrual
Both parties retain their separate estates, therefore no joint liability exists automatically. Both parties manage their estates separately. If the marriage is terminated, there is no sharing of accrual or any assets for that matter.
ANC – Antenuptial Contract
If you do not sign an Antenuptial Contract then your marriage will automatically be considered In Community of Property.
The ANC must be registered in the Deeds Office within three months of the date of execution (signing by the parties in front of a notary public). A High Court application to register an ANC must be brought within reasonable time after the conclusion of the marriage, if the parties failed to register the ANC in time and wish to do so. This is a costly procedure and parties should not neglect entering into an ANC before their date of marriage, as they will then have no recourse but to approach the High Court for relief.
An ANC may, as a general rule, include any provision that is not impossible, illegal, against good morals or the basic nature of marriage. The most commonly found clauses in a marriage contract are ones that regulate the matrimonial property system; pertain to succession and the distribution of assets after death; benefits and donations; liability for household expenses.
- Information supplied by: BM Attorneys
- For more information contact BM Attorneys: +27 (021) 421 2761 / www.bm-law.co.za / info@bm-law.co.za
