We couldn’t let the month of love go by without mentioning the importance of your Ante Nuptial Contract (“ANC”), which is one of the most important documents you will sign in your lifetime. Unfortunately, most people don’t understand its importance and expect it to be a standard document, which they can just pop in and sign right before the wedding. This can be an expensive misunderstanding.
Your ANC governs what will happen to all your assets and liabilities on death or divorce.
Starry eyed “about-to-be-marrieds” struggle to conclude a contract which deals with a possible divorce, however the ANC also applies on death. A Will (as discussed in an earlier blog post) determines what will happen to your estate upon your death, but what comprises that estate is determined by the ANC.
There are 3 matrimonial property rules apply in South Africa:-
MARRIAGE IN COMMUNITY OF PROPERTY
This applies automatically in the case where parties do not conclude an ANC, either by ignorance of the law, by omission or by choice.
All of the assets and liabilities of spouses married in community of property, whether acquired before or during the marriage, fall within one joint estate.
Although some feel that this is the truest form of sharing, it is seldom practical, as the entire joint estate is at risk of attachment by creditors should one party have financial difficulties, and the parties’ individual contractual capacity is usually limited. Individual ownership of assets (such as a bank account, car or a house) and individual liability for debts is not possible.
MARRIAGE OUT OF COMMUNITY OF PROPERTY
This is achieved by drafting and signing an ANC. Each spouse has from the beginning, and maintains, a completely separate estate.
Each party has and retains their individual right to enter into contracts, and each party’s assets are protected against any potential claims by the other party’s creditors. Each party is liable for his or her own debt. As each party’s assets are legally separate, there is no sharing.
MARRIAGE OUT OF COMMUNITY OF PROPERTY WITH INCLUSION OF THE ACCRUAL SYSTEM
The accrual system was introduced in The Matrimonial Property Act 88 of 1984, which accrual system was conceived to enable a form of sharing whilst each spouse still retains their own separate estates and their individual right to enter into contracts.
Each party keeps their own estate and may, without interference from or assistance of the other party, accumulate assets and incur liabilities. The estate of each spouse is determinable separately from that of the other party.
In case of dissolution of the marriage, each spouse’s estate is calculated by determining all assets and all liabilities; subtracting liabilities from assets and calculating a final asset value.
In simple 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.
It is possible to draft the ANC to provide for exclusions from this sharing:
In the ANC the spouses may exclude certain assets from the mutual estate. In order for an asset to be excluded, it must be properly and fully described.
If the parties do not wish to specifically exclude assets (this is often wise if the assets might not still be in existence in the event of the dissolution of the marriage) they may exclude a sum of money, which is the agreed equivalent of the assets which they do not wish to share (the “commencement value”). This sum will be recalculated to its equivalent value at the date of dissolution.
To ensure that spouses share only what they choose to share, the parties must exclude either a specific asset, or a commencement value, or both (which must be distinct and not represent the same asset).
Anything that is not excluded, and which is in the estate of either spouse at date of dissolution, no matter when it was acquired, is included in the calculation of the estate of the spouse who owns or owes it.
If and when you are planning to marry, it is important to consult your attorney, discuss your own particular requirements and ensure that your ANC is drafted with careful consideration of your exact intentions.
We will work through the draft ANC with you as if you were at dissolution of the marriage and try to anticipate any problems which may arise. The ANC should be drafted to eliminate any such problems or cater for them as best possible in the circumstances.
Your ANC must be signed before the date of marriage and in the presence of a notary and two witnesses. The notary will register the contract in the local registry of deeds.
Please CONTACT US for any further information.