Couples who are about to marry have to decide before the marriage whether their property relationship will be In Community of Property or Out of Community of Property. If the marriage is Out of Community of Property there is a further choice of whether the accrual system is to be adopted or not.
The choice is not easy. The effects of the various systems have to be discussed in the light of insolvency, death or divorce - all tragic circumstances which are far removed from the thoughts of those about to marry.
In order to understand the alternatives we shall define the concepts and mention the advantages and disadvantages. The choice is ultimately that of the parties, although we can help in making the choice, particularly as special considerations could apply depending on the age, financial situation, prospects and personal preferences of the parties.
Under our law the standard form of marriage (unlike most other Western countries) is In Community of Property. This form of marriage means that all the present and future assets of the spouses are pooled with each spouse owning an undivided half share. Generally the parties have joint control over this joint community estate (this control in practice may give rise to some confusion, even dispute). The whole estate can be taken by creditors to satisfy the debts of either party. On insolvency the whole estate is lost. On death (if the surviving spouse is not the beneficiary of the estate of the deceased spouse) assets which are not always capable of division (e.g. a motor car) have to be divided or sold. On divorce the same usually occurs.
For those who value their contractual and property independence and who may one day embark on business ventures the marriage in community of property is not ideal. If however the parties expect a stable business environment and a marriage of total commitment and sharing with the husband playing the slightly dominant role in property affairs, then a marriage in community of property may be suitable.
The partial solution to some of these problems is a marriage Out of Community of Property. We say the solution is "partial" because there is no complete and satisfactory answer to a business disaster, matrimonial strife or untimely death.
A marriage Out of Community of Property is brought about by the couple signing a contract before the wedding. The contract is registered in the Deeds Office in Cape Town after which it is given to the couple. This agreement is called an Antenuptial Contract ("A.N.C.").
A typical A.N.C. will provide that in respect of property and contracts there is no change in the legal status of the parties. Each has her/his own estate. Neither is liable for the debts of the other.
In the past wives wanted greater security in the form of settlements in the A.N.C. These settlements do give the wife some peace of mind. On insolvency and on death they are hers. On divorce they will also be hers in the absence of proven misconduct on her part. A clause is usually inserted to provide for a settlement to revert to the husband in the event of the wife predeceasing him.
There is no compulsion on the husband-to-be to make any settlements. If he does the settlements should not burden him to such an extent that he could not perform in the future if called upon to do so. The nature and extent of settlements are matters of personal choice dependent on the actual and expected financial circumstances of the husband. Some typical settlements are wedding gifts, cash, household furniture to a specified value, a residential plot, motor car and desirably a modest life or endowment insurance policy.
Although an A.N.C. enables a wife to accumulate her own estate where the settlements will help in the initial stages - there is no guarantee that over the years she will do so or even be able to do so. It is not uncommon to find that the wife during her period as mother, housewife, gardener, chauffeur, painter, etc., does not earn much. During this time - hopefully - her husband advances in business and may also build up an estate in his name. If things go wrong this estate may be lost to the wife on death, insolvency or even on divorce.
To overcome a possible inequality in the respective estates of the spouses the Matrimonial Property Act of 1984 introduced a system of accrual. This system if adopted is incorporated in the A.N.C. In this event the need for settlements is less important.
Under the accrual system each spouse has financial and legal independence and equality and works for his or her own profit and loss. When the marriage ends (by divorce or death) the "accruals" to the separate estates of the spouses (but excluding inheritances and donations and any other rights which the parties may agree should be excluded) are divided equally or in agreed proportions. When they sign the A.N.C. the parties declare the value of their respective estates. These values are updated during the marriage having regard to the change in the value of money. At the end of the marriage the values of the two estates are compared and the real growths in the respective estates are calculated. An example of an accrual calculation is shown in Appendix "A" (Please download the document below to receive the appendix and questionaire). It would of course be an advantage if at termination of the marriage the respective estates were as nearly as possible equal as this would obviate possible realisations or valuations.
It is permissible to state that the accrual system if adopted is to be applied to certain specific assets only (e.g. a home) or it could exclude certain assets (e.g. the husband's business).
When this letter has been considered an appointment should be made to discuss your requirements. A questionnaire is REFLECTED BELOW AS Part of Appendix "A" (Please download the document below to receive the appendix and questionaire) which would assist you in collecting the information required for preparing your ANC. If you intend to ask us to assist you with preparing your ANC, you should preferably should be completed and returned to us together with copies of the first pages of your Identity Books, before a consultation is held. Alternatively, the identity books should be brought in for copying.
Couples about to be married are reminded to check their Wills so as to ensure that they are updated to meet the changed circumstances.
Because the signing of an A.N.C. is a very important legal action which has far-reaching consequences, it may be advisable for the couple who are about to get married, to seek legal advice independently of each other.
For more information, please contact our offices on +27 41 3969200