Legal Articles

Further to the usual partying of the festive season, it is also a time where many couples schedule weddings to celebrate tying the knot. The huge pressure and strain that comes with organising and putting together a wedding more often leaves some little but important details unattended to. Unfortunately for some, the importance of these minor details only becomes manifest when the spouses are already in their new home.

Amongst a number of legal consequences that flow from the conclusion of a marriage, will be with regards to the matrimonial property system that applies between the spouses. Matrimonial property systems in South Africa are governed by the Matrimonial Property Act 88 of 1984 which provides for the below matrimonial property systems namely;

1. In Community of Property
2. Out of Community of Property without Accrual
3. Out of Community of Property with the Accrual System

While the system mentioned in (1) above is the default matrimonial property system, couples would require to conclude an Antenuptial Contract (ANC) to dispense with the default system. An Antenuptial Contract is basically a contract entered into by spouses to provide for marriage out of community of property together with terms and conditions with regards to their estates as to what must be done upon death or divorce. From the aforementioned it follows that couples that marry in community of property will not need to conclude an ANC since an indivisible joint estate subsists between them.

There are various ADVANTAGES in concluding an Antenuptial Contract to dispense with the default matrimonial property system (in community of property).

1. Spouses have freedom to contract in their own individual capacity;
2. Some personal assets hold sentimental value to a spouse, and therefore would best remain recognised as the sole property of that individual spouse;
3. The declaration of insolvency on one spouse affects the status of the other spouse automatically if in community of property, which is not the case if out of community of property;
4. The risks and legal woes of the one spouse do not threaten or affect the assets in the estate of the other spouse;
5. Spouses are free to put provisions in their Antenuptial Contract as long as they do not hinge on illegality or against public morals;
6. Debts and liabilities remain exclusively in the name of the spouse that transacted on it;
7. Spouses will be able to include provisions that suit their particular situation.

The above are but some of the possibilities when spouses conclude an Antenuptial Contract to dispense with the default marriage in community of property. Being a contract, there is no one-size-fits-all approach when it comes to Antenuptial Contracts, one needs special attorneys known as Notaries to execute an Antenuptial Contract on your behalf. Our Family Law department has Notaries and Attorneys that are well knowledgeable and experienced in executing Antenuptial Contracts.

Contact us for comprehensive assistance.

The information contained in this site is provided for informational purposes only, and should not be construed as legal advice on any subject matter. One should not act or refrain from acting on the basis of any content included in this site without seeking legal or other professional advice. The contents of this site contain general information and may not reflect current legal developments or address one’s peculiar situation. We disclaim all liability for actions one may take or fail to take based on any content on this site.