Article by listed attorney: Fawzia Khan
In South Africa we have 3 different types of marriage regimes. An in community of property or out of community of property, which is further characterized either with or without the Accrual System.
What do these different marital regimes mean? Well, in an In Community of Property marriage, both husband and wife equally share the risk and benefits of a joint estate. In fact their estate will be regarded as one estate. They are both liable for the debts and liabilities of the other, regardless of which one of them incurred the debt. Whatever property either of them had either prior to or during the marriage belongs equally to both of them. In the event of one of spouse becoming insolvent, the other spouse, in most instances, will also be sequestrated. Harsh but true.
Any couple, who get their marriage registered without any other formality, will be deemed to have entered into an in community of property marriage. This means that if a couple have not gone to an Attorney and had an Ante-Nuptial Contract drawn up and notarized by a Notary Public, then the marriage would automatically be considered to be in community of property.
There is no sharing of debts or liabilities and each of the spouse retains his or her independence. Their assets remain their own separate property and cannot be touched by any creditor. This also applies to any insolvency by one of the spouses. When the marriage terminates either through death or divorce, there is no accruing (“without accrual”) of the assets of the couple. There is also no distribution of the assets on dissolution of the marriage.
This is also registered by way of an ANC and has all the same benefits as the one without accrual. However, when the marriage is dissolved, a calculation is done to determine how much of assets each of the spouses accrued for the duration of the marriage. They would have to indicate in the ANC, what the initial value of their respective estates was at the commencement of the marriage. The spouse whose estate shows a higher accrual would need to pay half the difference of the net accrual to the estate with the lesser accrual.
All “Out of Community of Property” marriages, either with or without accrual have to be registered by means of an ANC. This means that the couple has to go before a Notary Public and execute an Ante- Nuptial Contract. The word “ante” means “before” marriage). The ANC must be done prior to the marriage being registered as a civil marriage with the Department of Home Affairs.
As a Notary Public, Fawzia is able to draft, execute and register your ANC at the Deeds Office according to what system will work best for you. Know your rights! The Law Desk of Fawzia Khan & Associates. We know! We care! We deliver! Email fawzia@the lawdesk.co.za or call 031-5025670 for legal assistance.
