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Dalena Van Der Merwe AttorneysDirectory / Marriage Officers / Gauteng

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types of marriages in short 

An antenuptial contract, governs what will happen to your assets and liabilities on dissolution of your marriage.  

South African law essentially provides for two types of marriages, “In Community of Property” and “Out of Community of Property”. Your choice will determine your proprietary rights during your marriage and upon death or divorce.

In Community of Property  

If you and your fiancé don’t sign an Antenuptial Contract before marriage, you will be deemed to be married In Community of Property. This means that all assets and liabilities of either spouse will automatically become part of the joint estate upon marriage.

 • Should one spouse conduct his/her financial affairs recklessly, it will adversely affect the other spouse.   

• All assets in the joint estate may become susceptible to the claims of creditors of both spouses.  

• For certain contracts, such as sureties and finance agreements, the consent of the other spouse is required.  

• As joint owners of all property in the estate, both spouses will share equal rights of ownership in each other’s assets.  

Out of Community of Property  

Should you wish to marry Out of Community of Property, you and your fiancé will need to enter into an Antenuptial contract prior to marriage.   

Neither spouse is liable for the debts or obligations of the other.   

Each spouse is entitled to retain his/her separate property with the freedom to deal with such property as he/she wishes.  

Should either spouse be sequestrated, the property of the other is protected from the insolvent’s creditors (subject to the provisions of Section 21 of the Insolvency Act   

The Matrimonial Property Act of 1984 (the “Act”) provides two options for your Antenuptial Contract, namely:   

1. with application of the accrual system; and   

2. without application of the accrual system.  

Please note that if you and your spouse conclude an Antenuptial Contract, the accrual system will automatically apply unless it is expressly excluded.  

1.    With Application of the Accrual System  

Application of the accrual system may be considered as the “fair” option as it offers the same protection as marriages concluded out of community of property, while it acknowledges the marital partnership by allowing for sharing of assets that are accrued during marriage.   

With application of the accrual system, both spouses also have separate estates during the subsistence of the marriage and they do not share in each other’s profits or losses during the marriage.  

Although neither spouse is liable for the other spouse’s debts or obligations, the parties will be entitled to an equal share of the assets that were acquired during the subsistence of the marriage, upon dissolution of the marriage. Where the marriage is dissolved by death, the accrual claim must be paid prior to any testamentary dispositions.  

Certain property belonging to either spouse may not be taken into account when the accruals are calculated, including:   

1. Any amount which shall have accrued to such spouse’s estate by way of damages other than damages for patrimonial loss;   

2. All inheritances, legacies and donations which may accrue to either spouse during the subsistence of the marriage and all assets which either spouse may acquire by virtue of his / her possession or former possession of such inheritance, legacy or donation and income derived therefrom; and  

3. Donations made by either spouse to the other, other than donations mortis causa. 

2. Without Application of the Accrual System   

Exclusion of the accrual system simply means that there is no sharing of profit or loss.  

All assets are completely separated, including those brought into the marriage and those acquired during the marriage. 

Neither party shall be liable for any debt or obligation incurred by the other before or during the subsistence of their intended marriage.  

As there is no sharing, neither spouse has any claim against the assets of the other upon death or divorce.  

 Feel free to contact me, should you have any further enquiries herein

 

 

 

 

 

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