As couples inevitably fall deeper in love as time goes on, particularly as the anticipation mounts for the wedding day, the absolute last aspect Mr. and Mrs. to-be feel like discussing is their marriage contract.
While being swept up in the wedding preparations and the overwhelming sense of love and commitment as couples get ready to say their “I do’s”, couples don’t think of the long term consequences of making an uninformed decision when it comes to their marriage contract. Couples need to protect their rights during the marriage and if it is dissolved – either by divorce or death. The decision couples make today will affect their entire future and even that of their future children and loved ones.
Bridal couples are essentially faced with three options: marriage in community of property; marriage out of community of property and marriage out of community of property, subject to the accrual system.
A marriage contract is also known as an antenuptial contract or ‘ANC’, a prenuptial contract or prenup. It is entered into by two people prior to their marriage, to stipulate the terms and conditions for the exclusion of community of property between them.
In community of property means that everything each individual spouse owned and each of their individual debts from before their marriage are put together in a joint estate. Everything they earn or buy after their marriage will also form part of this joint estate, including any debt and liabilities incurred by either one of them. If couples choose to marry without a marriage contract they will automatically be married ‘in community of property’.
Out of community of property means you need to approach a notary to draw up a marriage contract which is registered in the Deeds Office. If you enter into an ANC the marriage will automatically be subject to the accrual system, unless you specifically exclude this from your contract.
The accrual system can be excluded partially, for example, that the eventual distribution of the accrual will not be a 50/50 percentage basis, but in another ratio. Alternatively the accrual system will not apply if the marriage is dissolved by divorce (and not death). Basically any terms and conditions can be made, provided they are not illegal, contrary to the law or immoral.
With the technical and legal expertise required to advise on suitable marriage contracts according to your individual circumstances, Bregmans Attorneys take the hassle out this essential part of the marriage process.
Antenuptial contract packages:
• Face-to-face consultations: R1 500.00 (plus VAT)
• Virtual registration: R1 200.00 (plus VAT)
Authored by: Roy Bregman www.roylaw.co.za
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