The festive season is upon us as is the time for weddings and celebrations. Every year I am surprised at the number of happy couples waltzing down the aisle to say their vows with no knowledge of the choices they have with regards to marital regimes!
Every couple has different circumstances, but to ensure everlasting happiness or at least a “ fair” distribution of assets caused by death or divorce, please make sure you are both informed before solemnising the marriage.
So for starters, if you do NOT sign a contract before the wedding, you will automatically be married IN community of property.
What is marriage in community of property?
There is one estate between a husband and a wife. Property and debts acquired prior to and during the marriage are shared equally in undivided shares (50%). This can work for you if you plan to not to earn and be a stay-at-home parent, but not a good idea if you are planning to have your own business as both spouses are jointly liable to creditors.
To prevent this, in a nutshell, you need to enter into an Ante Nuptial contract BEFORE the wedding date
What is an Antenuptial contract?
A contract which regulates whether a marriage will be out of community of property with/without the accrual system. An antenuptial contract must be signed by the people entering into a marriage in the presence of a notary public, and it must be registered in the Deeds Registries office within the prescribed time period. This contract determines whether your marriage will exist in community of property or out of community of property, with or without the accrual system.
Some of the benefits of this contract are:
- Preventing your intended marriage from automatically being in community of property
- Offering transparency in your relationship by recording the rights, duties and consequences (legal and proprietary) of your marriage
- Preventing unnecessary disputes with your spouse down the line
The accrual system or NOT?
In a marriage out of community of property EXCLUDING the accrual system, the spouses have their own estates which contain property and debts acquired prior to and during the marriage (“what is mine is mine and what is yours is yours”). Each spouse is separately liable to his/her creditors. Prior to the marriage, an antenuptial contract must be entered into to indicate that the marriage will be out of community of property. This regime is often a good idea for second or third marriages where both spouses have children from previous marriages as well as separate estates.
A marriage out of community of property INCLUDING the accrual system is identical to a “marriage out of community of property” but the accrual system will be applicable. The accrual system is a formula that is used to calculate how much the larger estate must pay the smaller estate once the marriage comes to an end through death or divorce. Only property acquired during the marriage can be considered when calculating the accrual. The accrual system does not automatically apply and must be included in an ante nuptial contract. What most people do not understand though, is that DURING the marriage, the estates remain separate and neither spouse is liable for the debts of the other. The accrual will only be calculated upon dissolution of the marriage by death or divorce.
After marriage, the terms of the antenuptial contract become irrevocable unless they are amended by an order of the High Court or, in some cases, by a notarial contract which must be registered in a deeds registry.
THEREFORE ; discuss your options BEFORE the big day and consult an expert. ALCOCK & ASSOCIATES have expert attorneys to guide you in the right direction perfect for you as a couple.
This article is a general information sheet and should not be used or relied on as legal or other 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 legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)