When you plan to marry in South Africa, it is crucial to consider the different marital regimes.
If you do not sign an Antenuptial Agreement, your marriage relationship will automatically be In Community of Property – the default martial regime in South Africa.
A Marriage Out of Community of Property Without the Accrual is applicable and come into being when the spouses sign and register their Antenuptial Agreement. The legal consequence of this marital regime is that each spouse maintains and operate their own estate without the input of their spouse. “What’s mine is mine, and what’s yours is yours.” This includes assets and liabilities.
The main advantage of this marital system is that each spouse “owns” and manages their own estate. Each spouse is responsible for their debt, and their assets belong solely to them.
Because the spouses’ estates remain separate from each other, the assets (property) that they own, together with their debt (liabilities), will remain their own. If one spouse becomes insolvent, it does not affect the other spouse’s estate.
Spouses have contractual freedom and may enter just about any contract – if the specifications are not against “good morals of society”, i.e., not harmful to the moral welfare of society.
If one Spouse becomes insolvent, the other spouse’s assets cannot be attached.
The Spouses have their own separate estates, and joint financial planning can be difficult.
The spouse in a financially poorer situation may struggle, especially if they are a homemaker. If the one spouse is a homemaker, they may be severely prejudiced by the other spouse growing that spouse’s estate while the homemaker falls behind.
Suppose you want to marry out of the community of property without the accrual. In that case, you must sign an Antenuptial Contract (most commonly referred to as an Ante-Nuptial Contract) which excludes the community of property and the accrual.
An Antenuptial Contract has to be drawn up and signed by you and a Notary Public before your marriage. Not every Attorney is a qualified Notary Public.
They may therefore request that you sign a Special Power of Attorney (This is a document to grant your Attorney signing powers for a specified thing) to allow them to sign your Ante-Nuptial Contract in the presence of a Notary Public.
The Notary Public will lodge your Ante-Nuptial Contract with the Deeds Office for registration after that. The registration process may take up to three months, but it doesn’t need to be lodged and registered before the date of marriage to be valid.
In the case of death or divorce, each spouse is only entitled to those assets accrued in their own name.
Should one spouse choose to stay at home to raise the children, that spouse would not be entitled to the assets accumulated by the other spouse.
I recommend a Marriage out of Community of Property with the exclusion of the Accrual System in the event of the Parties having a sizeable estate at the time of the marriage.
It is important to remember that this marital regime does not exclude a spouse’s right to spousal maintenance.