Congratulations, you are currently engaged and busy finalizing all of your wedding plans. It’s the most exiting time of a couples life, enjoy it!

It is also important that couples don’t forget to leave out one of the most important aspects of planning your future together; namely to draw up an Antenuptial contract.

 At M M Fuchs Attorneys we provide affordable, professional and reliable Antenuptial contracts for all our future bride’s, and also gives sound advice on all forms of protection regarding your  Antenuptial contracts. The lawyers at our firm, are dedicated individuals, skilled in their fields of practice, and can provide clear advice on complex legal matters. The contract must be drawn up by an Attorney (Notary).

 We are available after hours and on Saturdays.

Why an Antenuptial Contract?
Antenuptial contract  is entered into by two people, signing takes place prior to their marriage ceremony, to stipulate the specific terms and conditions for the exclusion of community of property between them. The Antenuptial Contract may also include almost any terms and conditions as long as they are not illegal, immoral. During the marriage each spouse will retain his or her separate property and would have complete freedom to deal with that property as he or she chooses. This would not be the case if the parties were married without an Antenuptial Contract, i.e. ‘in community of property’.  

 Reasons why couples should enter into an Antenuptial contract:

The important decision concerns the form the marriage is to take. Will it be in or out of community of property? There are a number of advantages and disadvantages that can be weighed up.

There are two Matrimonial Property Regimes, namely:

Marriages in community of property

Many prospective couples could rightly argue that they do not own many assets at present and that it won’t matter if they are married in community of property.

Many couples who have been married for a long time will confirm this, but will regret not being married out of community of property for business reasons and the protection of assets. Many couples do not know what their future holds with regard to businesses they may want to start.

All premarital and post-marital debts or liabilities also become communal, the result being that creditors may recover their claims against the joint estate.

Since both spouses are joint owners and administrators of the communal estate, various transactions which bind the communal estate require the consent of both spouses prior to transacting.

Marriage out of Community of Property

Marriage out of Community of Property without the Accrual System
If you do not want the accrual system to apply, it must specifically be excluded in the Antenuptial Contract. The primary purpose is that each spouse will own and control his or her own estate assets without interference or control by the other spouse. Thus the system achieves a complete separation of the spouses assets. Such a matrimonial property system means that each spouse is personally liable for his or her own debts and obligations existing before the marriage and arising thereafter.

There will  be no sharing of assets or liabilities and on dissolution of the marriage, neither spouse will have any claim against the assets of the other.

 Marriage out of Community of Property with the Accrual System
In most cases the accrual system is, the fairest marriage system for the majority of couples. Before Accrual system was introduced in 1984, there was no form of sharing between the spouses of what was built up during the marriage. The accrual system was introduced to remedy this.  The accrual system is automatically applicable to marriages concluded out of community of property under the Matrimonial Property Act of 1984, unless the accrual system is expressly excluded in the Antenuptial contract.

'Accrual' means increase “financial growth” and by applying the accrual system, couples will share the assets that are built up during the marriage. In terms of the accrual system spouses are entitled to share equally in the "net accrual" of their respective estates upon dissolution of the marriage either by death or divorce. This right is not transferable and cannot be attached by creditors during the subsistence of the marriage. During the subsistence of the marriage to which the accrual system applies, two separate estates still exist and each spouse manages and controls his or her own estate.

This system has all the advantages of the protection afforded to marriages concluded out of community of property i.e that assets of one spouse are secure from the creditors of the other spouse, but it incorporates the ethic of sharing.

Calculation of Accrual and Net Accrual

              

Only on dissolution of the marriage, either by death or divorce, the accrual “financial growth” in each of the individual estates is calculated. The accrual of a spouse's estate is calculated by subtracting the net asset value of his or her estate at the commencement of the marriage from the net asset value of his or her estate upon dissolution of the marriage. This can be exemplified as follows:

If spouse A had a net asset value of R20 000-00 at the commencement of the marriage (his "initial value") and a net asset value of R100 000-00 at the dissolution of the marriage (her "end value") then the accrual to his estate is R80 000-00. If the initial value of the other spouse B was R5 000-00 and his end value R200 000-00, it follows that the accrual to her estate is R195 000-00.

Net accrual is calculated by subtracting the "smaller" accrual from the "larger" accrual. In the above example: R195 000-00 – R80 000-00 = R115 000-00. In accordance with the Matrimonial Property Act 1984, A (the spouse with the smaller accrual) acquires a claim against B (the spouse with the larger accrual) for one half of the net accrual namely = R57 500-00.

The initial value of a spouse's estate must be declared either in an Antenuptial contract or a separate statement made not later than six months after the marriage, failing which the initial value will be deemed to be nil.


It will be I great privilege for M M Fuchs Attorneys to assist you in this matter.

Should you wish to obtain an Antenuptial contract, kindly contact us.