An Antenuptial Contract is a legal agreement entered into by two individuals before their marriage.
This contract plays a vital role in determining the division of assets in the event of divorce or the passing of one of the spouses. In South Africa, where divorce rates are significant, understanding the implications of different marriage contracts is crucial.
There are three primary types of matrimonial property systems in South Africa that couples can choose from:
Marriage in community of property: In this system, all assets of the spouses, as well as their debts, merge into a joint estate. Both spouses have equal rights and responsibilities over this shared estate, and certain legal actions require consent from the other spouse. Creditors can potentially claim assets from the joint estate in case of insolvency.
Marriage out of community of property subject to the accrual system: Couples who opt for this system enter into an antenuptial contract before marriage. During the marriage, each spouse maintains control over their separate estates. The accrual system only comes into effect upon the dissolution of the marriage (through death or divorce), where the growth of both estates is compared. The spouse with the least growth is entitled to a claim for half of the difference in growth. Certain inheritances, legacies, and donations can be excluded from the accrual calculation.
Marriage out of community of property without the accrual system: In this system, each spouse retains control over their separate estate before, during, and after marriage. The estates are not subject to growth comparisons at the dissolution of the marriage, except in cases where specific agreements or wills dictate the allocation of certain property.
It's important to note that changing the matrimonial property system after marriage is possible but subject to specific conditions and costs. Couples must have valid reasons, give notice to all creditors, and ensure that no one else will be negatively affected by the change.
In South Africa, there are also different types of unions, such as civil marriages, civil unions, and customary marriages, each with its own rules regarding matrimonial property.
While contemplating the end of a marriage may not be pleasant, it is a prudent consideration when choosing the most suitable marriage property system. An antenuptial contract allows couples to define the terms that best align with their future needs, making it a valuable aspect of their marriage agreement.
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