THE FINANCIAL CONSEQUENCES OF YOUR MARRIAGE CONTRACT
The matrimonial property regime selected at the start of your marriage has far-reaching consequences for your assets, debt, insolvency, divorce, and death.
We take a look at the potential financial consequences of a marriage contract.
Types of contracts
A couple choosing to marry under community of property, do not have to engage into a contract prior to the marriage.
Those marrying outside of community of property, must prepare and execute an ante-nuptial contract (ANC), which outlines the financial implications of marriage. An ANC must be signed prior to marriage and can be tailored to individual needs as long as it does not violate any laws or good morals. A couple wishing to avoid the accrual system applying to their marriage, must clearly exclude it in their ANC; otherwise it will apply automatically.
An ANC must be executed by a notary public. Once signed by all parties, the notary public transmits it to the deeds office for registration. An ANC can cost from R2 000, depending on its complexity.
When choosing to marry in community of property, there are no upfront expenses or processes to undertake.
Assets
If you marry in community of property, all assets owned by you and your partner prior to the marriage, as well as assets acquired during the marriage, are included in the joint estate, unless something was inherited and expressly excluded from a community of property estate in the deceased’s will. Because marriage in community of property entails joint estate management, our law provides for situations where spousal approval is required for specific transactions.
In a marriage out of community of property, each spouse retains a distinct estate over which they have autonomy and independence, excluding the accrual. All debt committed by the spouses prior to and during the marriage is included in the common estate, which may include support payments to a previous spouse or to children from a previous relationship.
When a couple marries outside of communal property under the accrual system, each spouse retains a distinct estate over which they exercise complete autonomy and independence. Only when the marriage ends, can a claim to a part of the accrual (the net rise in the worth of the spouses’ estates since the marriage) become valid.
In a marriage out of communal property and without accrual, each spouse is personally liable for their own debts and not liable for those of the other spouse.
When a couple marries under the accrual system, only debt incurred during the marriage is included in the accrual calculation.
Divorce
When spouses in community of property divorce, the joint estate is divided equally between the parties except where one spouse claims forfeiture of patrimonial benefits.
When married out of community of property without the accrual, each party retains their own assets and liabilities without redistribution of assets. With a divorce with the accrual system, the accrual is calculated by considering the commencement value of each estate and the extent to which each estate has grown during the marriage.
Where a party to an in community of property marriage dies, the joint estate is simply dissolved and the surviving spouse can claim 50% of the joint estate, while the other half will be distributed to the deceased spouse’s heirs and legatees.
Where a person is married out of community of property with the accrual, the accrual is calculated at the death of the spouse. If the accrual of the surviving spouse’s estate is less than that of the deceased’s estate, he/she can lodge a claim for a share the deceased estate.
Written by Heinrich Gonzales, Director of HFG Attorneys Inc.
Disclaimer
The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.
HFG Attorneys in Paarl, Western Cape, specialises in four main areas, including family law, general litigation, criminal defence and firearm law.
