Marital Regimes In South Africa – Part Two
Marital Regimes In South Africa – Part Two
In South Africa, an antenuptial contract is a legal agreement entered into by two individuals before the date of marriage that governs the division of their assets and liabilities in the event of divorce or death. There are two main types of antenuptial contracts: with accrual and without accrual.
In this part two of the Marital Regimes in South Africa blog series we will discuss the difference between an antenuptial contract with accrual and without.
1. ANTENUPTIAL CONTRACT WITHOUT ACCRUAL:
In this type of contract, each spouse retains ownership of the assets and debts they had before the marriage, as well as any assets they acquire during the marriage. This means that if the marriage ends, each spouse keeps what they brought into the marriage and what they acquired during the marriage. There is no sharing of assets or liabilities accumulated during the marriage. All assets and all liabilities will remain the property of the spouse that owns the asset or incurred the debt. While an antenuptial contract without the accrual offers maximum protection of assets, it may provide little security for the financially weaker spouse, as neither party can have a claim against the other’s estate upon dissolution of the marriage by way of death or divorce.
An antenuptial contract without accrual can be beneficial for individuals who wish to maintain separate financial identities during the marriage, or who have significant assets they want to protect in the event of divorce or death. It can also provide clarity and certainty about financial matters, which can help prevent disputes and conflicts in the future.
2. ANTENUPTIAL CONTRACT WITH ACCRUAL:
In a marriage out of community of property with accrual, spouses can share in the growth of their estates on dissolution of the marriage, while also protecting their assets from each other’s creditors during the marriage.
The term “accrual” refers to an increase or accumulation over time. In the context of the accrual system in antenuptial contracts, the underlying principle is that each spouse retains the value of the assets they brought into the marriage. Then, they share the growth or accumulation of assets that occurred during the marriage, reflecting what they have built together.
If you decide to marry out of community of property with the accrual there are further considerations that must be discussed with the notary assisting you. Firstly, you will need to determine your commencement values and secondly, you will need to decide if any assets need to be excluded.
Part three of this blog series will cover commencement values, assets to be excluded and the calculation of the accrual in more detail.
Deciding on the best option for you can be challenging and may require extensive discussion between you and your prospective spouse. We would advise that you make an appointment with our notary at Brits Law to have a thorough discussion with regards to your options and to ensure that the contract is tailored to your specific needs.