What are your options when getting married in terms of South African Divorce Law?
1: Marriage in Community of Property
How does it work?
- Both spouses share equal in the assets and liabilities.
- Spouses have equal powers of administration.
- Written consent of both is required for certain important transactions such as those relating to fixed property, suretyship and credit agreements.
- The Act provides for the protection of the spouses should one act to the prejudice of the other.
- Informal consent of both is required for transactions such as the selling of goods of the joint household, such as furniture.
- Marriage is a partnership and as such can be conducive to a harmonious marriage relationship.
- During the marriage and on its dissolution both partners are entitled to a half share in the joint estate and each one has equal powers of administration.
- The system of equal powers could in cases where the temperament of one or both marriage partners is not collaborative, lead to conflict in the marriage.
- Insolvency of one of the spouses affects the total communal property. Where a risk of insolvency exists, it is not a desired system.
This option does not need an anti-nuptial agreement. Where no ANC exists, you will be deemed to have been married in this manner.
2: Marriage out of community without the accrual system
You can have Schoeman Attorneys draft an ante-nuptial contract tailored to your own individual needs.
- When parties are involved in the corporate market and are owners of their own corporations, this is always an advised form of getting married and with that if they have decided not to have children.
- A well-off widower and a wealthy widow conclude a so-called marriage for companionship.
- The interests of children may be involved in second and further marriages.
In these cases independent legal advice for each of the parties is advisable especially for the women, who on account of domestic obligations may be out of the labour market for a long period, to ensure that her interests are properly protected. She must choose carefully.
3: Marriage out of community of property with the accrual system
- During the marriage each spouse retains control of his or her own property, builds up his or her own estate and each is responsible for his or her own debts.
- On dissolution of the marriage by death or divorce, the value of the assets obtained during the marriage (the accrual) will be shared equally. The accrual is determined by calculating the difference in the net starting value and the net final value of the estate of each spouse with the exclusion of inheritances, legacies and donations. On dissolution of the marriage the value of the difference in the accrual of the two estates, taking inflation into account, is then divided equally.
- The Act enables each spouse to share in the accrual but also protects creditors.
- When the accrual becomes payable the court can issue an order for the deferment of payment or for payment in instalments
- The accrual system is a modern, equitable system and may be conducive to harmonious marriage relationship.
- It offers protection during the existence of the marriage against, for example, insolvency of one of the spouses and, at the same time, at dissolution of the marriage each spouse has an equal share.
- During the marriage the competence of the spouses to deal with their property is not limited in any way, provided that the one does not or will not seriously prejudice the right of the other to share in the accrual.
- A possible disadvantage, especially in the case of a wealthy spouse, might be that he or she feels that he or she is not quite free to deal with his or her property since the other could apply to court for the immediate division of the accrual should the latter feel that the former, by entering into a specific transaction, might, prejudice his or her right to share in the accrual. This may cause friction.
- Another disadvantage of the accrual system is that spouses do not share in each other’s credit worthiness, which can have the result that the non-working wife may have little credit worthiness during the subsistence of the marriage if her estate is small.
REMEMBER: If you do not want the accrual system to apply, it must specifically be excluded in the ante-nuptial contract.
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