ANTENUPTIAL CONTRACTS

Marriage in Community of Property

Being married in community of property means that all assets and debts before and during the marriage are shared in a joint estate between both spouses. Any assets, debts and liabilities acquired by either spouse, before or after the marriage, will be added and form part of one joint estate.

Marriage Out of Community of Property

The parties may enter into a contract before the marriage in which they normally stipulate that the marriage is one of out of community of property. The may further stipulate whether the accrual system as referred to in the Matrimonial Property Act, number 88 of 1984, is applicable or not.

The Accrual system explained:

It is important to note the following:

1. Every marriage out of community of property is automatically subject to the accrual system, except in so far as that system is expressly excluded by the antenuptial contract.

2. The Accrual System means that at the dissolution of the marriage subject to the accrual system, by divorce or death of one or both of the spouses. The spouse whose estate shows no accrual or a smaller accrual than the estate of the other spouse, acquires a claim against the other spouse or his estate for an amount equal to half of the difference between the accrual of the respective estates of the spouses.

3. The accrual of the estate of a spouse is the amount by which the net value of his estate at the dissolution of his marriage exceeds the net value of his estate at the commencement of that marriage.

4. An Inheritance, a legacy or donation which accrues to a spouse during the subsistence of the marriage does not form part of the accrual of his estate unless the Antenuptial contract, or testator or donor stipulates otherwise.

5. It is very important to note that the accrual system does not alter the position of creditors and is only applicable between spouses by the occurrence of either divorce of death of the spouses.”