Do i need a Antenuptial Agreement



Do I need a Antenuptial Agreement?


Written by Louwrens Koen   


If you have made the big decision to get married, you are quickly realizing that there are many decisions that need to be made. Other than the dress, wedding and reception, there is also a key legal decision that you should make with your fiancé – whether or not you need a antenuptial agreement.



Marriage in Community of Property comprehensively explained


When the parties do not enter into an antenuptial contract prior to marriage they will be automatically married in community of property. The property, assets and liabilities belonging to both parties at the time of marriage or acquired any time thereafter become part of the joint estate. The parties own the assets and liabilities in equal undivided shares and they are joint administrators of the joint estate.

The parties in certain circumstances may however own separate property which will not form part of the joint estate for example donations and inheritances where the testator or donator expressly excluded from the joint estate. This exclusion of ownership is only valid between the parties and not against creditors of the joint estate and is thus attachable.

Both parties have the same powers to dispose of the assets of the joint estate. There are however onerous restrictions on the parties to bind the joint estate as set out by article 15 of the Matrimonial Property Act 88 of 1984 that a spouse needs formal written permission for some actions that will bind the joint estate and informal consent for other actions:




Marriage out of community of property WITH application of the accrual system


In most cases the accrual system is, perhaps, the fairest marriage system for the majority of couples. Before the introduction of the accrual system in 1984, if prospective spouses chose to be married out of community of property there was no form of sharing between them of what was built up during the marriage. The accrual system was introduced to remedy this. It is applicable to all marriages out of community of property, unless the prospective spouses specifically exclude the accrual system in their contract.

In terms of this regime, both spouses have separate estates during the subsistence of the marriage and do not share each other’s profits or losses during the marriage. 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, which is the basis of an in community of property marriage. In other words, while neither spouse will be liable for the other spouse’s debts, the parties will, however, share what they have acquired during the subsistence of the marriage. This sharing only occurs upon dissolution of the marriage. This regime of marriage allows for very imaginative and flexible estate planning.

The 'accrual' is the extent to which the respective spouses have become richer by the end of the marriage, in other words, the amount by which the spouses' joint wealth has increased over the period of the marriage. The spouse with the smaller accrual has a claim against the one with the greater accrual for half of the difference between the two 


Written by Louwrens Koen Wednesday, 01 February 2017 Posted in Antenuptial Contracts