In terms of South African Law, people can either marry in community of property or out of community of property. An antenuptial contract (also known as a prenup) is a contract entered into by two people before their marriage to regulate how third parties will treat them during their marriage and regulates how their finances will be divided on dissolution of the marriage.
An antenuptial contact is an important document which determines your proprietary rights during your marriage as well as when it is dissolved - either by death or divorce. It is essential that you elect your matrimonial regime prior to the marriage as it is very expensive and time-consuming to change your marital regime later.
There are various reasons why some people prefer to enter into an Antenuptial Contract in order to be married out of community of property. The five most common reasons are that:
What is Marriage In Community of Property?
You are automatically married in community of property if you have not signed an antenuptial contract before marriage. This means that all assets and liabilities will be shared equally – "what’s yours is now ours and what’s mine is now ours".
What is Marriage Out of Community of Property?
If you enter into an antenuptial contract you will be married out of community of property. Assets acquired before or during the marriage remain separate throughout the course of the marriage. Assets are not shared and each partner has a separate estate – "what's yours is yours and what's mine is mine".
Below is a list of advantages and disadvantages of in and out of community of property:
|Out of Community of Property|
|The antenuptial contract can be tailored to suit your needs.|
|If one spouse is in debt, the creditors may only claim the assets of the debtor spouse and may not attach the assets of the non-debtor spouse.|
|If one spouse becomes insolvent, it does not affect the estate of the other spouse and creditors will not be able to attach the assets of both spouses.|
|Each spouse can conduct their own independent financial affairs.|
|When one spouse dies, the other spouse’s estate will not be frozen.|
|The financially stronger spouse does not have to share his or her assets with the financially weaker spouse.|
|At the dissolution of marriage, the estate is divided according to the marital regime chosen and not automatically divided equally.|
|Each spouse may contract independently of the other spouse meaning that the one spouse may not necessarily know of the other’s financial affairs.|
|The parties must enter into a legally binding contract in order to be married out of community of property which is costly.|
|In Community of Property|
|On death or divorce, the joint estate is divided equally between the parties.|
|Promotes both legal and economic equality of the spouses.|
|There is no cost to drafting an antenuptial contract and there is no time spent consulting with a Notary Public.|
|If you are the financially weaker spouse you will benefit as you share in the assets of the financially stronger spouse.|
|If one spouse is in debt, creditors have a claim to both the debtor spouse's assets as well as the non-debtor spouse's assets.|
|If one spouse becomes insolvent or if the one spouse's business becomes insolvent, then both parties will be sequestrated and liable to creditors.|
|There is no financial independence, meaning both parties have to agree on any financial transaction and both will have to contract.|
|The economically stronger spouse has to share his or her assets with the financially weaker spouse.|
|When one spouse dies, the joint estate will be frozen until finally wound up by the executor. This leaves the surviving spouse lacking liquidity until the estate in finalised which can take months or years depending on the complexity of the estate.|
|When one spouse dies, the executor's fees will be calculated on the gross value of both spouse’s estates which will result in higher administration costs.|
What is the accrual?
If you decide to marry out of community of property, there are two types of contracts that you can enter into, namely:
We charge a nominal fee for the taking of instructions, collection of FICA documents, drafting of the deeds, consultations with you for signature, registration in the Deeds Office and safekeeping of the documents on delivery.
Should you wish to instruct us and sign your ANC with us in the same day or should you wish to meet with us to discuss your personal circumstances in light of the marital regimes, we charge an additional fee based on a work/time or urgency basis.
Contact us for an individualised quotation.