COMMUNITY OF PROPERTY
What is the difference?
You would not be the first to feel a uncomfortable about a marriage contract! It feels a little distasteful to have to draw up a contract in case of a divorce when you haven’t even walked down the aisle!
Here’s an amazing thought:
The truth is your marriage will end someday.
The two “D’s”
it will end in death or divorce.
Makes sense doesn’t it.
The reality is that a marriage contract is not solely about death or divorce.
It has some rather positive benefits for married life
Community of property
If you do not draw up an antenuptial agreement in South Africa you will automatically be married ‘in community of property’. The state assumes that all assets and liabilities of both husband and wife are shared. It simply means that everything which is his is hers and everything which is hers is his. It sounds just fine doesn’t it, exactly in the spirit in which you entered into the marriage. Consider a few things however:
- If one of you gets into financial trouble, creditors have a claim against both of you.
- There is no financial independence; if the wife wants to open a clothing account, the husband has to sign the account application; if the husband wants to buy a car, the wife has to sign too. Business transactions require the consent of both parties.
- If one partner should die, the estate of both the deceased and surviving partner will be wound up because it is a joint estate – not great for the surviving partner who will find themselves in legal limbo for a while.
- on death or divorce, the estate is divided equally
So what is an antenuptial contract?
An antenuptial contract or ANC means that you are married out of community of property.
The law recognizes you as two separate entities.
Antenuptial contract with accrual
Assets acquired before or during the marriage remain separate throughout the course of the marriage. Assets are not shared and each partner has a separate estate.Advantages:
- if one of you goes insolvent, creditors may not attach the assets of the other; in other words you get to keep your home folks.
- each of you are legally obliged to offer financial support to one another should one of you be unable to support himself/herself
- in the case of death or divorce, you are entitled only to those assets you have accrued in your name. Should one of you choose to stay at home to raise children, that partner would not be entitled to the assets accumulated by the other partner
Most marriages (9 out of 10) are ANC with accrual … this is really the way to go!
- you both share in the wealth accumulated during marriage
- if each of you owned property before the marriage, it remains in your respective names
- you each conduct your own independent financial affairs
- if one of you goes into debt, it cannot be claimed from the estate of the other
- in the case of divorce, any assets made whilst married are shared – it doesn’t matter who acquired them; each partner’s current net asset value is calculated by subtracting all liabilities from assets
- the ANC can be tailored to suit your needs
- it protects the partner who remains at home to care for the family