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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    

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Family Law Service – Advocate Muhammad Abduroaf – Finding the best lawyer for you.

Choosing the right law firm (Attorney or Advocate) can be a daunting task in the intricate landscape of legal matters. Whether you’re facing a complex litigation case, navigating corporate law, or seeking legal assistance for personal issues, the decision of which law firm to engage is crucial. At the firm Advocate Muhammad Abduroaf, we understand the significance of this decision, and we aim to demonstrate why choosing our firm can make all the difference.

Expertise and Specialisation

One of the primary reasons for choosing our law firm is our expertise and specialisation in diverse legal areas. As you can see from this website, advocate Muhammad Abduroaf practices in various fields of law. This breadth of expertise ensures that no matter the nature of your legal issue, you will have access to knowledgeable and experienced professionals who can provide tailored solutions.

Personalised Approach

We recognise that every client and every case is unique. That’s why we prioritise a personalised approach to legal representation. From the moment you engage our services, we take the time to understand your specific needs, concerns, and objectives. This allows us to develop strategies and solutions customised to your circumstances, ensuring the best possible outcome for your case.

Commitment to Excellence

At Advocate Muhammad Abduroaf, excellence is not just a goal – it’s our standard. We are committed to providing our clients with the highest quality legal services, characterized by thorough research, meticulous attention to detail, and strategic thinking. Our track record of success speaks for itself, with numerous satisfied clients who have benefited from our dedication to excellence.

Responsive and Accessible

Legal matters can be stressful and overwhelming, so we prioritise responsiveness and accessibility. Our team is readily available to address your questions, concerns, and needs throughout your case. Whether you prefer to communicate via phone, WhatsApp, email, or in-person meetings, we are here to provide you with the support and guidance you need when you need it.

Cost-Effective Solutions

Legal representation shouldn’t break the bank. That’s why we are committed to providing cost-effective solutions that deliver value for our clients. We offer transparent billing practices and strive to minimise unnecessary expenses wherever possible, ensuring you receive top-notch legal services without the hefty price tag.

Ethical and Professional Conduct

Integrity and ethics are at the core of everything we do. Our team adheres to the highest standards of professional conduct, ensuring your case is handled with the utmost integrity, honesty, and discretion. You can trust that your legal matters will be handled with care and respect, and your confidentiality will always be protected. In conclusion, choosing the right law firm can significantly impact the outcome of your legal matters. At Advocate Muhammad Abduroaf, we offer expertise, specialisation, personalised service, commitment to excellence, responsiveness, cost-effective solutions, and ethical conduct. These qualities set us apart and make us the ideal choice for clients seeking top-notch legal representation. Contact us today to learn how we can assist you with your legal needs. If you require an Advocate Law Firm to assist you in your legal matter, feel free to contact us using the following details:
    • Tel.: 021 111 0090
    • Email.: [email protected]
We service clients throughout South Africa. These include: Cape Town Rustenburg Kimberley East London Nelspruit Polokwane Pietermaritzburg Bloemfontein Port Elizabeth Pretoria Durban Johannesburg

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