An Antenuptial Contract is an agreement between two people who intend to marry. The contract stipulates how the husband and wife’s property will be divided on dissolution of the marriage either upon divorce or death of either spouse. The Antenuptial contract must be signed by both parties before a Notary Public prior to the date of their marriage and then registered at the Deeds Office within 3 months of the date of signature for the contract to be enforceable against third parties (creditors). Failure to register within the prescribed period, would render the parties married in community of property, profit and loss for the benefit of creditors.
There are 3 Matrimonial Property systems in South African law:
Married in Community of Property, profit and loss
Married out of Community of Property, profit and loss with the exclusion of the accrual system
Married out of Community of Property, profit and loss with the accrual system
A marriage in community of property, profit and loss
If a couple does not enter an Antenuptial contract prior to their marriage they are automatically married in Community of Property, profit and loss. In this marital property system, the parties do not have separate estates from each other, their estates are joined and undivided. Upon divorce or death, the joint estate is divided equally between the husband and wife or the estate which includes all liabilities as well.
Although most people are under the impression that this is the fairest marital property system to marry with, this type of marriage may have devastating consequences on both husband and wife and their children in that all assets prior to marriage that the individual party owned now becomes the joint ownership of both husband and wife along with all assets acquired during their marriage. All their individual debt prior to marriage becomes the debt of the other after they get married and continuing during the marriage. The result being if one of the spouses find themselves in financial difficulty the other spouses’ assets are at risk of being attached by creditors in respect of their spouses’ debt. Should one spouse go insolvent the other spouse automatically goes insolvent affecting their legal capacity and destroying their credit reputation. The risk of losing all assets of both parties simultaneously for the debt of only one means that their children could suffer under the consequences thereof.
A marriage out of community of property, profit and loss with the exclusion of the accrual
This type of property system must be stipulated in an Antenuptial contract and there must be an express exclusion of the accrual system failing which the accrual will automatically apply. Creditors cannot attach the assets of the other spouse for the debt of only one of them. Upon divorce or death, the assets and liabilities remain that of the individual or their estate. If parties wish to enter this type of marital property system, it is important to plan for death by means of a will to ensure the security of the other in the event of death.
A marriage out of community of property, profit and loss with the accrual
This type of property system is stipulated in an Antenuptial contract. The parties will also have separate estates during their marriage, where their assets and debts are their own and creditors cannot attach property of the one for the debt of the other.
What is the Accrual?
At the commencement of the marriage the individual parties will have a nett value (assets less liabilities) of their respective estates or perhaps they have a value of zero if they have no assets, this value is stipulated in the Antenuptial contract and is excluded from the calculation of the accrual. Therefore, what they accumulated prior to marriage is excluded from the calculation of the accrual unless they wish to include it. During the marriage their separate and individual estates may grow (accrue) as they acquire more wealth. At the dissolution of the marriage by death or by divorce the accrual claim becomes a right. It cannot be claimed during the marriage by either party or by creditors. At the end of a marriage the spouse whose estate shows no accrual or a smaller accrual than the estate of the other, acquires the claim against the other spouse for an amount equal to half of the difference between the accrual of the respective estates of the parties.
Upon divorce or death, the accrual will be calculated and the spouse with the largest estate will have to pay the accrual claim to the other spouse or their estate in the event of death.