Antenuptial Contract without Accrual

Marriage out of community of property without accrual

Couples not wishing to apply the accrual system to their marriage have to specify this in their Antenuptial Contract. This will result in assets of both spouses being separated.

Furthermore, this applies to both the assets brought into the marriage, as well as those which are obtained after, and during, the course of the marriage. 

Each spouse will retain ownership of completely separate estates. This also applies to their liabilities which remain their own respective responsibility. Thus the debts of each party remains their own.

Should one of the parties wish to get a divorce, then neither spouse would be entitled to make a claim on any of the assets belonging to the other. 

There is no sharing of any profits or losses from either party and the court is not entitled to make adjustments to this to create equality and fairness.

Whilst this type of contract is beneficial if both parties are financially stable, problems do arise in the case of a financially dependent spouse with little or no assets. Such an individual may theoretically be left with little or nothing after the divorce. 

In the case of either spouse dying, the estates of each respective spouse are then normally dealt with through a will.

Advantages of a Marriage Out of Community of Property with Accrual excluded

• If one of the parties becomes insolvent, creditors may not attach the assets of the other.
• Both parties are still legally obliged to offer financial support to one another, should one of them be unable to support himself/herself.
• Full contractual freedom.
• In second marriages, marriages where the parties already have children and where both parties have already amassed a sizeable estate or in so called marriages of convenience it simplifies matters drastically.

Disadvantages of a Marriage out of Community of Property with the Accrual System excluded

• In the case of death or divorce, each spouse is only entitled to those assets accrued in their own name. Should one spouse choose to stay at home to raise the children, that spouse would not be entitled to the assets accumulated by the other spouse.

Van Deventer & Van Deventer Incorporated - Antenuptial Contracts Johannesburg

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