Antenuptial Contracts

If couples do not conclude an antenuptial contract (ANC) before the date of marriage, they will be married in community of property by default. This means that each spouse’s assets and liabilities acquired before and during the marriage will form part of one joint estate.

The main disadvantage of a marriage in community of property is that both spouses may become jointly and severally liable for each other’s debts, regardless of whether the debt was incurred before or during the marriage. Thus, if a spouse is financially reckless, the other spouse will become liable for those debts.

This matrimonial property regime involves an antenuptial contract (i.e., an agreement entered into before the marriage) where community of property and profit and loss are excluded. Each spouse has his or her own separate estate. Neither spouse can be held liable for the debts of the other. Each spouse can transact freely with their assets without the consent of the other spouse.

Without the accrual:

• • • Both spouses retain separate ownership of their assets and liabilities. At the dissolution of the marriage, there will be no claim against the other spouse’s assets or estate.

With the accrual:

• • • Both spouses retain separate ownership of their assets and liabilities, with the only difference being that this marriage regime creates a form of sharing of the assets and growth accumulated during the marriage (i.e., known as the accrual). The accrual is calculated at the dissolution of the marriage, whether by death or divorce. The parties’ net asset value at the date of marriage is deducted from the net asset value at the date of death or divorce. The spouse with the lesser accrual can claim 50% of the difference in the parties’ estates from the spouse with the greater accrual.