Antenuptial Contracts

Marriage In Community of Property

  • People marrying after 1988 are automatically married in community of property UNLESS they marry out of community of property by entering into an antenuptial contract which either includes or excludes the accrual system. 'In community of property' means that everything the couple own, and their debts, from before their marriage are put into a joint estate.
  • All assets and debts acquired during the marriage also fall into the joint estate. The spouses are co-owners of the joint estate, each owning a 50% share thereof. Although this is the truest form of sharing, it is commercially seldom viable as the entire joint estate is at risk of attachment by creditors, and the parties' individual contractual capacity is usually limited. Individual ownership of assets and individual liability for debts is not possible.
Marriage Out of Community of Property

This is achieved by concluding an Antenuptial Contract.

Advantages: Spouses do not share their assets and on the dissolution of the estate, they get the whole estate. They are each responsible for their own debts and each partner's creditors cannot attach the other spouse's estate.

Disadvantages: If one spouse is unemployed and is financially dependent on their spouse, upon dissolution of the marriage, they will not be entitled to any property from his or her share, and may get only spousal maintenance.
Marriage Out of Community (with Accrual)

  • Marriage Out of Community of Property (with accrual) means that during the marriage, each spouse controls their own assets, and is responsible for their own debts. On the dissolution of the estate, by death or divorce, the value of each spouse's assets obtained during the marriage is calculated, and the spouse whose estate has grown less than the other's estate during marriage will get half the difference between the growths in their respective estates.
  • In simplistic terms the value of the smaller estate is subtracted from the value of the larger estate, the difference is split, and the party having the larger estate pays half of the difference between the two estates to the party with the smaller estate.
  • Remember it is possible to provide for exclusions if it is described properly in the Antenuptial.

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