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Comparison table Marital Regimes South-Africa

  

 

Marriage in community of property

Marriage out of community of property with the accrual system

Marriage out of community of property without the accrual system

Before Marriage

No Antenuptial Contract

Antenuptial Contract entered into before marriage is solemnised

Antenuptial Contract entered into before marriage is solemnised

On date of Marriage

Both spouses estates join into one joint estate which belongs to both spouse in equal undivided shares

Two separate estates. Each spouse may deal with his/her estate as he/she wishes.

Two separate estates. Each spouse may deal with his/her estate as he/she wishes.

During the Marriage

Joint estate comprises assets and liabilities that belonged to either spouse at the date of and during the marriage, excluding the following:

•Property donated or bequeathed subject to the condition that it shall be excluded from a community of property marriage;

•Certain life insurance policies;

  • Delictual liabilities.

-Husband and wife have equal powers with regard to disposal of assets, contracting of debts and management of the joint estate. Can perform any juristic act with regard to joint estate without consent of the other spouse, except acts set out in Sections 15{2) and 15(3) of the Matrimonial Property Act.

ASSETS EXCLUDED:

  • Assets excluded in terms of the antenuptial contract;

• Delictual damages for non-patrimonial loss;

• Inheritances, legacies and donations;

• Donations between spouses

• Certain life policies.

Two separate estates. Each spouse may deal with his/her estate as he/she wishes. Any increase or decrease benefits or prejudices the relevant spouse only.

 

Accrual system expressly excluded in the antenuptial contract.

 

End of marriage on death or divorce

The estate is halved and each spouse is entitled to an undivided half share.

Accrual = Difference between the net value at commencement (escalated) and the net value at dissolution of the marriage.

-The net value at commencement is declared in the antenuptial contract / separate statement. If no net value stated in contract it shall be deemed to be NIL.

 

Each spouse retains his/her own assets and own accrual – no sharing unless Antenuptial contract compels donations or court orders transfer of assets.

An financially dependant party can still claim maintenance.

Advantages

Promotes legal and economic equality.

Both parties share in the wealth accumulated during marriage

Each party is free to conduct his/her own independent financial affairs.

• If party goes into debt, it cannot be claimed from the estate of the other party.

• 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 antenuptial contract can be tailored to suit the parties needs

• It protects the partner who remains at home to care for the

family

If one of the parties becomes insolvent, creditors

may not attach the assets of the other

• Each of the parties is still legally obliged to offer financial support to one another should one of the parties are unable to support himself/herself.

• Full contractual freedom

• In second marriages, marriages where the parties already have children , where both parties have already amassed a sizeable estate or in so called marriages of convenience it simplifies matters drastically.

Disadvantages

If one of the parties goes into debt, creditors have claim to all of both parties assets

• If one of the parties has his/her own business and becomes insolvent, both parties assets becomes fodder for debt collectors

• There is no financial or even contractual independence,

certain transactions need the

written or oral consent of both parties

• If one partner should die, the estate of both the deceased and surviving partner will be wound up jointly – not great for the surviving partner who will find themselves in legal limbo possibly without access to funds in addition to the trauma of losing a loved one.

 

 

Need to keep accurate accounting records.

In the case of death or divorce, a spouse is entitled only to those assets accrued in his/her name.
Should one of the spouses stay at home to raise children, that partner would not be entitled to the assets accumulated by the other partner.

Best suited for

Younger couples where there is no business risk from either of the spouses. Outdated. Not advisable.

Younger couples. Especially where one of the spouses has his/her own business.

Second marriages, marriages where the parties already have children, where both parties have already amassed a sizeable estate or in so called marriages of convenience.

For further information or assistance please contact Louwrens Koen Attorneys

Tel: 087 0010 733
E-Mail:  admin@louwrenskoen.co.za  

311 Eastwood Street Arcadia, Gauteng South Africa

Written by Louwrens Koen Wednesday, 11 November 2015 Posted in Antenuptial Contracts South-Africa, Different Marital Regimes South-Africa

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