Related Post

The role of antenuptial contracts in South Africa – What do you need to know before getting married?

When people are in love, they often want to spend the rest of their lives together. And one way of doing so is to get married. Usually, after they got married, they will start a family. However, there is one important aspect many people do not consider before getting married. And that is the propriety regime that would apply to their marriage. In other words, what belongs to who during the marriage and after the marriage should they divorce or one spouse passes away.

Marriages in community of property – The Standard Regime

In South Africa, the default matrimonial property regime is that of in community of property and profit and loss.  What this means, is that whatever property the couple have during the marriage, they would share. This includes debt. Therefore, should a party receive a huge sum of money during the marriage, that money would belong to both the parties and form part of the joint estate. The same principle would apply should a party get into financial trouble. In such a case both the spouses or the joint estate would be responsible for that debt. If spouses are happy to share in each other’s wealth and liabilities during the marriage, then being married in community of property may be a good option. However, if this matrimonial property regime does not appeal to a couple before they get married, then a different matrimonial property regime should be looked at. Now let us move on to a marriage out of community of property.

Marriages out of community of property – with or without the accrual regime

Marriages out of community of property may take two faces. The first is out of community of property without the inclusion of the accrual regime. This is its purest form. The other would be a marriage out of community of property with the inclusion of the accrual regime. Before we explain the differences between the two, we need to explain to you what it is meant to be married out of community of property and profit and loss.

Marriage out of community of property

Being married out of community of property means that spouses during the marriage own their own assets and are solely responsible for any debt owed by either of them. This can be compared to a marriage in community of property where the opposite applies. Therefore, if the couple is married out of community of property, a spouse would not require the other spouse’s consent to incur a debt. A spouse would not be entitled to claim any monies belonging to the other spouse by virtue of being married. In short, if you are married out of community of property, you are solely responsible for your estate. As would be seen further below, to be married out of community of property you have to enter into an antenuptial contract.

What is the accrual regime?

As mentioned above, a marriage out of community of property could have the accrual regime apply to it or not. The aspect of accrual only comes into play should the parties divorce or one of them pass away. The parties would then share in half the difference between the two estates. This amount is referred to as the accrual. Therefore, by way of example, should one spouse pass away and the estate of the deceased has grown in the sum of R10 000 – 00, then the surviving spouse should receive half of that. The above example would apply if the surviving spouse’s estate has not grown at all. If it has grown, then they would share in half the difference of their respective growths.

Marriage out of community of property with the inclusion of the accrual regime

The accrual regime automatically applies to a marriage out of community of property, unless it is expressly excluded in an antenuptial contract. During the marriage, the same principles as above apply to a marriage out of community of property with the inclusion of the accrual regime.

Marriage out of community of property with the exclusion of the accrual regime

If the couple does not want the accrual regime to apply to their marriage out of community of property, they need to expressly stipulate it in the antenuptial contract. If they do not do so, then their marriage would automatically be out of community of property with the inclusion of the accrual regime.

Parties entering into an antenuptial contract before the marriage

As stated, if a couple wants to get married out of community of property with or without the inclusion of the accrual regime, they need to enter into an antenuptial contract. They would sign a document wherein they stipulate what matrimonial property regime would apply to the marriage. Other matters may be included in an antenuptial contract. For example, assets that should not be included in the calculation of the accrual. The antenuptial contract is signed before a notary public and it is registered at the Deeds Office. In that way, the public would know that you are married out of community of property.

What happens if I did not enter into an antenuptial contract and want to change it later?

Should a couple get married and later decide to change the matrimonial property regime, they may do so with the consent of the High Court. A court application would have to be made to the High Court explaining to the court why they wish to change the matrimonial property regime and also which property regime they now wish to apply to them.

Publication of Application to change the matrimonial property regime

Various other information would be included in the High Court Application which could entail details of various creditors of the spouses and their assets and liabilities and so on. Attached to the court documents would also be a draft postnuptial contract. The Application and the Court date would be published in the Government Gazette and one or two local newspapers for potential creditors to be informed about the pending Court Application.

Informing creditors of the change in the matrimonial property regime

Various creditors would also be notified of the application via registered mail. The application can be expensive because of the work and expenses involved. This cost includes attorney fees advocate fees, publication fees etc. It is therefore important to decide before the marriage whether or not the matrimonial property regime of community of property is the best regime for you before getting married. If it is not the best for you and your intended spouse, we advised that the enter into an antenuptial contract. This will not only save you money in the long run but also avoid a lot of complications in the future. Speak to us should you wish to enter into an antenuptial contract. Our antenuptial contract product may be purchased here.   We are certain that you found the above article useful and interesting. Please consider sharing it on the share buttons below. They include Facebook, Twitter, LinkedIn, WhatsApp, Gmail and more. Someone may find it useful as well. Should you require business advice or services, feel free to click on these links: Business SA | Private Legal | Envirolaws    

Posted on by Telelaw

People often ask these questions when looking for a lawyer, attorney, or advocate to fight for you.

Are you looking for a tough lawyer, attorney, or advocate?

Question 1:

Hi there! I’m searching for a lawyer, attorney or advocate known for being tough and persistent. I need someone who will fight for my rights and protect my interests, no matter the situation. It’s important to me that they have a strong track record of winning cases and standing up for their clients. Can you recommend anyone who fits this description? I appreciate your help!

Looking for a tough and persistent lawyer, attorney, or advocate

Question 2:

Hello there! I’m trying to find a lawyer, attorney or advocate widely known for their toughness and persistence. I need someone to go to great lengths to fight for my rights and interests. They must have an impressive record of winning cases and standing up for their clients. Do you know of anyone who matches this description? Your assistance is greatly appreciated!

What to look for when searching for a lawyer, attorney, or advocate?

Answer to questions 1 and 2:

Certainly! Finding a good lawyer, attorney, or advocate is essential for ensuring that your rights and interests are protected in any situation. I recommend thoroughly researching potential lawyers, attorneys or advocates and considering their track record of success in cases similar to yours. It may also be helpful to seek recommendations from trusted sources, such as friends or family members who have had positive experiences with a particular lawyer, attorney or advocate. Ultimately, it’s essential to find a skilled and knowledgeable lawyer, attorney or advocate and someone you feel comfortable working with and can trust to represent your best interests. Best of luck in your search!

Finding a lawyer, attorney or advocate willing to fight for your rights and interests

When looking for a lawyer, attorney or advocate, finding someone willing to fight for your rights and interests is essential. As you research potential lawyers, attorneys or advocates, consider their track record of success in cases similar to yours and their overall approach to advocacy. It may also be helpful to seek recommendations from trusted sources and find a lawyer, attorney or advocate you feel comfortable working with and can trust to represent your best interests. Good luck finding the right lawyer, attorney or advocate for you.

Finding a lawyer, attorney or advocate who can work efficiently and effectively.

Finding someone who can work efficiently and effectively is essential when searching for a lawyer, attorney or advocate. As you research potential lawyers, attorneys or advocates, consider their track record of success in cases similar to yours and their overall approach to advocacy. Ask about their timeline for completing your case and their strategies for moving quickly without sacrificing quality. Additionally, seek recommendations from trusted sources and find a lawyer, attorney or advocate whom you feel comfortable working with and can trust to represent your best interests. Good luck in your search!

Finding a capable and intelligent lawyer, attorney, or advocate

When searching for a lawyer, attorney or advocate, finding someone intelligent and capable is essential. As you research potential lawyers, attorneys or advocates, consider their track record of success in cases similar to yours and their overall approach to advocacy. Ask about their timeline for completing your case and their strategies for moving quickly without sacrificing quality. Additionally, seek recommendations from trusted sources and find a lawyer, attorney or advocate whom you feel comfortable working with and can trust to represent your best interests.

Finding an Intelligent Divorce lawyer, attorney, or advocate

When looking for a divorce lawyer, attorney or advocate, finding someone intelligent and capable is crucial. Consider their track record of success in cases similar to yours and their overall approach to advocacy. Ask about their timeline for completing your case and their strategies for moving quickly without sacrificing quality. Seek recommendations from trusted sources and find a lawyer, attorney or advocate whom you feel comfortable working with and can trust to represent your best interests. Good luck in your search!

Searching for a Child Custody Lawyer, attorney, or advocate in South Africa

When searching for a child custody lawyer, attorney or advocate in South Africa, finding someone experienced and knowledgeable in family law is essential. Consider their track record of success in cases similar to yours and their overall approach to advocacy. Ask about their timeline for completing your case and their strategies for moving quickly without sacrificing quality. Seek recommendations from trusted sources and find a lawyer, attorney or advocate whom you feel comfortable working with and can trust to represent your best interests. Good luck in your search!  

Posted on by Telelaw

Do you require a video legal advice consultation?

Click here and schedule one today!