Written by: MK Law
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There are three marital regimes in South African Law.
- In community of property (no need to register an antenuptial agreement)
- Out of community of property without the accrual system
- Out of community of property with the inclusion of the accrual system.
The registration of an antenuptial agreement is necessary for option 2 and 3 (both out of community of property options). There are different financial implications for the estate of each spouse in each of the marital regimes.
It is important to understand that each spouse will have their own estate to start with, no matter how big or small. An estate comprises of the value of any assets that a person owns, minus any debts or liabilities.
In order for you and your partner to agree on a type of marital regime, you should familiarise yourself with the finer detail of the different types of marital regimes.
Marriage in Community of Property
In terms of marriage in community of property, both parties (you and your spouse) are the owners of the joint estate. The joint estate comprises both spouse’s estates at the beginning of the marriage (that is all assets and liabilities) and consolidates this into one single estate. All assets and liabilities obtained after marriage will also be part of the one consolidated estate. In South Africa, a marriage in community of property is the default system whereby parties are married, without a registered prenuptial or antenuptial agreement. One of the disadvantages of such a marital regime lies therein that the estate is unprotected from creditors of either spouse. Both spouse’s assets may be seized during insolvency, as the assets are jointly owned.
Marriage Out of Community of Property without the Accrual
Marriages out of community of property without the accrual means that there is no sharing of assets, debts or liabilities. The spouse’s assets (acquired before and during the marriage) remain their own separate property. The spouses are also not responsible for each other’s debt and the property belonging to one spouse cannot be touched by creditors during an insolvency of the other spouse.
When the marriage comes to an end either by death or divorce, each spouse retains his or her own property.
Marriage Out of Community of Property with the Accrual
A marriage out of property with the accrual has similar advantages to the one without the accrual. The key difference is that assets and liabilities after marriage still belongs to the individual spouses, even though they form a consolidated ‘accrual’ or ‘joint estate’. In cases where a marriage out of community of property with accrual ends, a calculation will be done of the accrual of each spouse’s estate after the date of marriage. The value of their estates before marriage will be excluded. The spouse with the smaller ‘accrual’ can claim from the spouse with the larger ‘accrual’ so that they end up with half of the total accrual each.
This means that there is equal sharing in the growth of each other’s estate.
Need Advice further advice?
If you need further advice on which option will work best for you, as well as a more in depth understanding of the different types of marital regimes in South Africa our lawyers at Antenupials. Our lawyers specialise in antenuptial contracts and we have the expert knowledge and years of experience. We can help you with competent legal advice with an easy and time efficient process to get your antenuptial contract registered.