Getting Married - Antenuptial Contract - R1450

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Antenuptial with Accrual

Antenuptial with Accrual

Out community of property' means that the parties involved entered into a contract, a written agreement Notarised by a Notary Public prior to the marriage in terms of which each spouse usually retains his or her separate property and have complete freedom to deal with that property as he or she chooses. If during the marriage, one spouse is declared insolvent, the others property is protected from the insolvent spouse's creditors, subject to Section 21 of the Insolvency Act.

Should you choose this option as your marital regime, you will have to decide whether the accrual system should be applied or not. Under both options of married out of community of property (with or without the accrual system), one spouse's creditors cannot hold the other spouse responsible for debt repayment, in direct contrast to the case where the parties are married in community of property.

The accrual system is applicable to all marriages out of community of property, unless the prospective spouses specifically exclude the accrual system in their contract. 'Accrual' means increase and the accrual system is a form of sharing the assets that are built up during the marriage.

The underlying philosophy in respect of the accrual system is that each party is entitled to take out the asset value that he or she brought into the marriage, and then share what they have built up together. It is however possible to draft the Antenuptial Contract in such a way that the parties share both their pre-marital and post-marital assets on a 50/50 basis, just as if they were married in community of property, but without incurring liability for each other’s debt.

Best suited for younger couples. Especially where one of the spouses has his/her own business.

Antenuptial without Accrual

Antenuptial without Accrual

Out community of property' means that the parties involved entered into a contract, a written agreement Notarised by a Notary Public prior to the marriage in terms of which each spouse usually retains his or her separate property and have complete freedom to deal with that property as he or she chooses. If during the marriage, one spouse is declared insolvent, the others property is protected from the insolvent spouse's creditors, subject to Section 21 of the Insolvency Act.

Should you choose this option as your marital regime, you will have to decide whether the accrual system should be applied or not. Under both options of married out of community of property (with or without the accrual system), one spouse's creditors cannot hold the other spouse responsible for debt repayment, in direct contrast to the case where the parties are married in community of property.

Without Accrual the parties specifically declare that the Accrual system as set out in the Matrimonial Property Act will not be applicable to their marriage and will specifically be excluded.

Each spouse retains his/her own assets and own accrual – no sharing unless Antenuptial contract compels donations or court orders transfer of assets.

In the case of death or divorce, a spouse is entitled only to those assets accrued in his/her name. Should one of the spouses stay at home to raise children, that partner would not be entitled to the assets accumulated by the other partner.

Practical for second marriages, marriages where the parties already have children , where both parties have already amassed a sizeable estate or in so called marriages of convenience it simplifies matters drastically.

In Community of Property

In Community of Property

Marry without entering into Antenuptial Contract. Share in assets and liabilities before and after marriage.

If you do not enter into an Antenuptial Contract prior to your marriage, you will automatically be married in community of property in terms of South African Law. Both parties’ individual estates will be combined into one jointly owned estate by the marriage. This means that all per-marital assets, debt and liabilities are all pooled into one estate once the marriage is concluded, from which point onwards, only one jointly owned estate will exist. Both parties will be jointly liable for debt-repayment towards their combined creditors, irrespective whom incurred the debt. This means that if one of the parties behaves in a financial irresponsible way, the other party will also suffer because of it. Also the parties will be exposed to the business risks of the other party and will in practice not have freedom to trade.

'In community of property' means that everything each party had prior to the marriage, assets as well as liabilities, are pooled into one single jointly owned estate, once the parties marry. From this point onwards everything they earn or buy will also form part of this jointly owned estate. This also pertains to any debt or liabilities either one of them incur during the marriage. Should one spouse be reckless with his or her financial affairs, it will adversely affect the other spouse, as they are both totally liable for the debts of their jointly owned estate. As both parties are joint owners of all property in their jointly owned estate, both parties have equal rights of ownership and administration over all the assets.

Once married in community of property, there will be various transactions that require the consent of both parties. The most prejudicial consequence of marrying in community of property, is that assets in the joint estate will always be vulnerable to the claims of creditors of both spouses.

This marital regime is definitely not recommended for spouses running their own independent businesses as premarital and post-marital liabilities will become communal, thereby endangering the good standing of not just one, but both spouses.

Headline

  • Why register antenuptial contract?
  • How does a pre-nuptial contract work?

    A pre-nuptial or ante-nuptial contract is an agreement an unmarried couple enters into before they get married. I deals with the proprietary aspects of their marriage and other related issues. For example, it would deal with what matrimonial property regime applies to the marriage. For example, whether they will be be married “In Community of Property and Profit and Loss”, or “Our of Community of Property and Loss”with our without the Accrual Regime. In an Ante-nuptial contract mention can also be made of what assets are excluded from the joint estate etc. Below are some questions that people have  in relation to to ante-nuptial contracts.

    The Pre-nuptial agreement is executed, or signed before a Notary Public who then registers the document at the office of the Registrar of Deeds. In this way, the information in the Ante-Nuptial Contract becomes public.

  • When can we amrry after signing contract?
  • How much does it cost to get a prenuptial agreement?
  • Can you do a prenuptial agreement after marriage?
  • How long does it take to draw up a prenuptial agreement?
  • How do you get a prenuptial agreement?

    Depending on the co-operation of both parties the process takes from one to 5 working days to complete. Registration of the antenuptial contract in the office of Registrar of Deeds takes about 8 working days and delivery of the registered antenuptial contract takes between 1 - 3 months.

    How long does it take?
  • Do we have to wait for registration of the antenuptial contract before we get married?

    No. On receipt of the signed antenuptial contract or power of attorney our notary public will issue a certificate to hand to the marriage officer.

  • What is your cost to register an antenuptial contract

    Our all inclusive fee for the registration of the antenuptial contract is R1450.00. There are no hidden costs.

  • What is the accrual system?

    What is the accrual system? The accrual system is a formula that is used to calculate how much the spouse with the larger estate must pay the smaller estate if the marriage comes to an end through death or divorce. Only property acquired during the marriage can be considered when calculating the accrual.

  • What is nett commencement value?

    This is the amount that you are worth at the date of the marriage. To calculate this, subtract the total amount of your liabilities (debts) from the total amount of your assets (property). The remainder is your commencement value. Nett asset value at the inception of the marriage.

  • Why should we consider an antenuptial contract?
    Here are four important reasons to sign a prenuptial agreement before walking down the aisle.
    • You are Marrying Someone with Significant Debt.
    • You Wish to Protect Your Assets.
    • You Want to Ensure Financial Security for Both Parties.
    • You Want to Protect Your Business.
  • Can we amend or change our antenuptial contract?

    Yes the contract can be changed before getting married? Contact our Notary Public for further information.

  • How do we get our contract after registration?

    We can assist with any legal matter you might have. If an service is not within our legal ambit we will endeavor to refer you to appropriate professionals. Click here for a list of our services.

  • What matrimonial regime is best for us?

    Keep in mind that everyone have circumstances. Careful consideration should be given before deciding on the most suitable option. The laws that govern marriage and matrimonial property – the belongings of the spouses that form part of the marriage – are numerous and complex. That being said, our courts are very protective of the sanctity of marriage and the rights of the spouses. With international travel and communication becoming easier, and globalisation resulting in many cross-border relationships, questions about how marriages will operate in multinational settings from a practical and legal perspective are increasingly common.

  • Why shoould we use Louwrens Koen Attorneys to register our Antenuptial contract?

    Louwrens Koen Attorneys have assisted thousands of couples over the years to register an Antentenuptial Contract. Being a long established provider of this specialised service in South-Africa shows our commitment to our clients. We believe this commitment has resulted in our longevity and success

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