Antenuptial Contracts
An Antenuptial Contract is an agreement entered into between two parties prior to their marriage and must be signed before a notary before registration in the Deeds Office.
In the absence of an ante nuptial contract, the parties are married in Community of Property which means that their estates are joined and they share assets and liabilities. Unfortunately, all debts incurred by one partner are debts of the joint estate which means that you may find yourself liable for your partner’s debts. Under this regime, your partner’s written consent is required in the case of purchase of immovable property; cars or financial investments. Likewise you may not enter into a credit contract or bind yourself as a surety without your partner’s written consent.
Etienne Bedeker talks about Antenuptial / Prenuptial agreements.
In community of property
If couples do not conclude an Ante-Nuptial Contract (ANC) before date of marriage, they will be married in community of property by default. This means that each spouses’ assets and liabilities acquired before the marriage, and during the marriage, will form part of one joint estate.
The main disadvantage of a marriage in community of property is that both spouse’s are jointly and severally liable for each other’s debts, regardless of whether the debt was incurred before / during the marriage. Thus, if a spouse is financially reckless the other spouse will become liable for those debts incurred.
Out of community of property
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/her own separate estate. Neither of the spouses can be held liable for the debts of the other.
- Without the accrual:
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- Both spouses retain separate ownership of their assets and liabilities. At the dissolution of the marriage there will be no claim towards the other spouse’s assets/estate.
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- With the accrual:
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- 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 / growth accumulated during the marriage (i.e. known as the accrual). The latter occurs at the dissolution of the marriage by death/divorce. The accrual is calculated as follows: the parties’ net asset value (determined at date of marriage) is deducted from the net asset value (at date of death/divorce), and the spouse with the lesser accrual can claim 50% of the difference in the parties’ estate from the spouse with the greater accrual.
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