Antenuptial Contract Explained - Easy Online Registration Process -Louwrens Koen Attorneys

Marriage in Community of Property

Marriage in Community of Property

When the parties do not enter into an antenuptial contract prior to marriage they will be automatically married in community of property. The property, assets and liabilities belonging to both parties at the time of marriage or acquired any time thereafter become part of the joint estate. The parties own the assets and liabilities in equal undivided shares and they are joint administrators of the joint estate. The parties in certain circumstances may however own separate property which will not form part of the joint estate for example donations and inheritances where the testator or donor expressly excluded from the joint estate. This exclusion of ownership is only valid between the parties and not against creditors of the joint estate and is thus attachable.

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Marriage out of community of property with application of the accrual system

Marriage out of community of property with application of the accrual system

In most cases the accrual system is, perhaps, the fairest marriage system for the majority of couples. In terms of this regime, both spouses have separate estates during the subsistence of the marriage and do not share each others profits or losses during the marriage. This system has all the advantages of the protection afforded to marriages concluded out of community of property, but it also incorporates the ethic of sharing, which is the basis of an in community of property marriage. In other words, while neither spouse will be liable for the other spouse’s debts, the parties will, however, share what they have acquired during the subsistence of the marriage. This sharing only occurs upon dissolution of the marriage. This regime of marriage allows for very imaginative and flexible estate planning.

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Marriage out of Community of Property Without Accrual

Marriage out of Community of Property Without Accrual

Out of community of property marriages excluding the accrual system, are marriages where the spouses have contracted whatever property belongs to each spouse at the date of marriage is held separately by that spouse throughout the marriage (referred to as “exclusion of community of property”). Each spouse controls his/her own estate exclusively, without interference from the other spouse, although each has a duty to contribute to the household necessaries according to his/her means.

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Register Antenuptial Contract - Get Started

Register Antenuptial Contract - Get Started

Application to register an antenuptial contract must be completed and sent to our offices. After receipt of the completed information a pro forma contract will be drafted and forwarded to you within 24 hours. Peruse, scrutinize and discuss the contract. We will gladly assist both parties are completely satisfied as to the format and contents. Once satisfied the parties will need to print and sign the contract in front of two competent witnesses. The original signed contract, together with certified copies of your identity documents and proof of residential address must be returned to our offices, either by hand or postnet or courier. After receipt of the original signed contract we will immediately you with the notarial certificate, signed by the Notary, for use by your Marriage Officer. We will then prepare and lodge the contract in the Deeds Office. The registration process can take up to 10 working days in the Deeds Office. After registration the contract stays in the Deeds Office for a period of approx.1-3 months whilst it is being scanned and the data pertaining to the contract is captured on their database. After receipt back from the Deeds Office, we will scan and email the registered contract to yourself, with request to confirm the delivery option. We will send a invoice for our registration costs together with the pro forma invoice. Payment can be made by cash, credit or debit card EFT or SWIFT.
Getting Married?. Remember to change your will! Failing to do so may have serious future consequences.

Getting Married?. Remember to change your will! Failing to do so may have serious future consequences.

Already have children? . Consider the registration of a family trust.

Already have children? . Consider the registration of a family trust.

About Louwrens Koen Attorneys. Why use us?

About Louwrens Koen Attorneys. Why use us?

Customer focused We pay attention to our clients. We are well aware that the whole antenuptial contract process may become very confusing and emotional. Our dedicated team is in constant contact with our customers to ensure peace of mind, with updates provided throughout the process. Do you want to know more about what our clients are saying? See their testimonials. Knowledgeable and experienced staff We have literally assisted thousands of clients over the years with their antenuptial contract registrations. We specialises in the registration of antenuptial contracts. Process friendly law firm We strive to be a process friendly company, clarifying and streamlining the process for you. We will take time to explain your options and take you through the process. Honesty and Integrity Our corporate philosophy of service and integrity, driven by our entrepreneurial spirit, brings a passion for assisting others in need. We believe in transparency when assisting our clients, always keeping our clients’ needs in mind.

Different Marital Regimes in terms of South-African Law

There are basically only two marital regimes in terms of South African Law:

  • In community of property; or

  • Out of community of property with application of the accrual system.

  • Out of community of property without application of the accrual system

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. To change your marital regime after you've gotten married will be a time consuming and very expensive process. Also note that such a change will not prejudice the existing creditors' rights. It would involve a joint application by both parties to the relevant High Court for consent to effect the change. The application and preceding process involves a lot of formalities. Only if and when the High Court grants the consent, will you be permitted to proceed to change your marital regime. As your choice of a marital regime will determine your proprietary rights during your marriage, as well as when it is dissolved – either by death or divorce it is imperative that you choose prior to your marriage whether you want to get married 'in community of property' or 'out of community of property'.

'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.

'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.

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