Marriage is one of the most important decisions that a person will make in their lives and when the excitement of gowns and venues has calmed down, serious thought must be given to the manner in which to be married. Don’t assume you and your partner are both on the same page. It’s hard to talk about marriage as if it were a business, but when it comes to creating an ante-nuptial agreement, that’s exactly the approach you should take. An ante-nuptial contract isn’t an exit strategy or evidence of the lack of faith in a relationship. It is simply legal protection against future risk you may be exposed to.
In South Africa there are 3 Matrimonial Property Systems, namely:
- Marriage In community of property;
- Marriage Out of community of property with the application of the Accrual System; and
- Marriage Out of community of property without the application of the Accrual System.
Marriages in community of property
In terms of this regime, both spouses share equally in their assets and liabilities that they own, owe and acquire before and during the subsistence of the marriage. Spouses have equal power of the administration of their joint estate and can, in certain circumstances, act independently of the other. However, there are certain exceptions that exist in which consent of the other spouse is required; such as those relating to immovable property, suretyships and credit agreements.
Property that is owned, prior to and during the subsistence of the marriage, by each spouse forms part of one joint estate that is then owned in equal shares. This regime promotes both legal and economic equality of the spouses. During the subsistence of the marriage and upon its dissolution both partners are entitled to a half share in the joint estate. The biggest disadvantage of a marriage in community of property is that the insolvency of one spouse affects the total communal property, and thus the solvency of the other spouse.
Marriage out of community of property excluding the accrual system
In this marital regime, spouses enter the marriage, by means of an ante-nuptial contract, with their own assets and liabilities. During the subsistence of the marriage, spouses retain control of their own property, accumulate their own estate and each spouse is responsible for his or her own debts.
Marriage out of community of property including the accrual system
This regime works in much the same way as a marriage out of community of property without accrual except that upon dissolution of the marriage, either by death or divorce, the estates of the spouses will be divided differently in accordance with their respective assets and financial position. In that, the difference between the respective values of the assets of each spouse obtained during the marriage – the accrual – will be shared equally between the spouses.
This regime dictates that all property acquired and owned by each partner prior to the marriage remains the sole property of that spouse. However, property, such as those specifically excluded in a contract or inheritance, do not form part of the joint estate. Out of all the systems, it is generally accepted that the accrual system is a modern, equitable system and may be conducive to a harmonious marriage. During the subsistence of the marriage the competence of the spouses to deal with their property is not limited in any way, provided that the one does not or will not seriously prejudice the right of the other to share in the accrual.
It also offers protection during the existence of the marriage against, for example, insolvency of one of the spouses. Furthermore, upon the dissolution of the marriage, each spouse has a right to share in the growth of the estate, even if they did not financially contribute to it.
Why do you need a marriage contract?
One of the most important reasons is that it offers protection against the debts of your spouse and possible insolvency. Both spouses have complete financial freedom to transact without the written permission of the other.