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Antenuptial contracts

Antenuptial contracts
Most people know that they should enter into an antenuptial (pre marriage) contract before the big day, but few are aware of the different options available to them. In South Africa you have a choice between three marital regimes, namely:

	marriage in community of property
	marriage out of community of property with application of the accrual system
	marriage out of community of property without application of the accrual system

The latter two can only be achieved by entering into an antenuptial contract before you get married.

If you don't, you will automatically be married in community of property. The main disadvantage of a marriage in community of property is that the spouses have a single estate. Should one partner be reckless with his financial affairs, it will adversely affect the other partner, as they will be liable for each other's debts. The partners will however also be joint owners of all property in the estate. This marital regime is not recommended for spouses running independent businesses.


The alternatives are:

Marriage out of community of property with application of the accrual system
Each partner maintain control over his/her own estate, are liable for his/her own debts and independently own property from the other. The partners declare the value of their individual estates at the beginning of the marriage in the ante nuptial contract and the final values are calculated at dissollution of the marriage. This can be through either divorce or death of one partner.

The accrual (increase in the value of the estate) of the spouses' estates is determined by calculating the difference between the value of the estate in the ante nuptial contract and the nett value at the end of the marriage, with due regard to the effect of inflation.

The partner whose estate accrued the least is entitled to one half of the difference between the accrual of the two individual estates.

Marriage out of community of property excluding the accrual systemWith this contract each partners maintains a separate estate. Neither partner can claim against the other partner at dissolution of the marriage, except for a possible maintenance claim.

Finally
Only an attorney who is admitted as a notary can execute an antenuptial contract. Your attorney can also advise you on any concerns or questions you might have.