Opinion - The previous columns dealt with the proprietary consequences of marriages in community of property.
Marriage in community of property is the most common form of marriage in South Africa.
However, it is not the only form.
Many spouses have, in recent years, elected to marry out of community of property.
This is commonly known as marriage by ante-nuptial contract (ANC).
Those who watch American movies and television shows will be familiar with the term “pre-nuptial agreement or pre-nup”.
The ante-nuptial (ANC) contract is similar to the American pre-nup.
There are two types of ANCs in our law, namely an ANC with accrual and an ANC without accrual.
This column will discuss marriages in terms of ante-nuptial contract with accrual.
The term accrual means the accumulation of something.
When used in terms of matrimonial property law, accrual refers to the assets, finances, property and vehicles acquired during the course of the marriage.
When dealing with marriage in community of property, a joint estate is formed which consists of all the assets obtained both prior to and during the marriage by both parties.
ANC with accrual, on the other hand, forms a joint estate which will only consist of the assets acquired by either or both parties from the date of marriage, these being all the assets not taken into account in the ante-nuptial contract.
The parties intending to enter into a marriage by ANC with accrual must each disclose the net value of their respective estates (total value of all assets, property, etc.), which is listed in detail in the ante-nuptial agreement.
This is done to ensure the ownership of the aforementioned assets are retained by the respective parties in the event of a divorce.
The ANC must be signed prior to the registration of the marriage.
The marriage officer must be furnished with a protocol number in order to register the marriage in terms of the ANC.
An ANC may include any legal clause the parties would like to have stated for the record, for example a commonly used clause is the exclusion of future inheritance of one or both parties from the accrual system.
What this means is that any inheritance received by either party during the course of the marriage will not form part of the joint matrimonial estate.
A special clause may be included, which states that if either party obtains a business during the course of the marriage, the shares or ownership of that business will be expressly excluded from the accrual in the event of a divorce.
The advantages of entering this type of union are:
- Both parties share the wealth accumulated during the course of the marriage equally even if one party tended to the home and household affairs whilst the other worked.
- It protects any business or financial investments obtained prior to marriage in that the ownership will not be lost, transferred or shared in the event of a divorce.
- It makes the division of the assets easier, as all assets obtained during the course of the marriage will be divided equally.
The ANC can be drafted to suit the parties’ individual needs and circumstances.
Any party wishing to enter into this form of marriage is required to seek the assistance of a legal professional, not only to advise parties on their options but also to formally draw up the ANC.
The contract must be signed in front of and notarised by a notary of the public and a protocol number will be issued. The notary will then send the contract to be registered at the Deeds Office.
The process is concluded once the contract is registered in the Deeds Office. An ANC is not valid and binding unless this process has been conducted and concluded correctly.
* Tymara Ketusha Samuel of Siven Samuel & Associates.