In South Africa it is advisable for most couples about to be married to sign an Ante Nuptial Contract (known as an ANC). This must be done prior to getting married. An ANC is a legal document that determines how your possessions and property will be distributed in the unfortunate event of death or divorce. Our upfront, all inclusive fee is amongst the most competitive in KZN, and ensures there are no hidden costs when you can least afford them – in the period just before your wedding.
Marriages in Community of Property
Without an Antenuptial contract, married couples will automatically be married in Community of Property (COP).
This means there will be a joint estate where everything will be shared and split down the middle in the event of divorce. It also means that creditors can attack the entire estate and there is no protection of one persons assets.
Marriages out of Community of Property
You have two options after having determined that you wish to enter into an Antenuptial Contract. Parties to an Ante Nuptial Contract typically do so to protect assets and separate estates. If married with an ANC, it is advisable to purchase assets in the name of the partner less at risk of being insolvent. While the other partner may have their business liquidated, with the consequence of creditors chasing any personal assets they can get their hands on, at least assets in the other partner’s name are protected.
A straight ANC implies that each party starts with and keeps a separate estate from their spouse. What accrues to their estate during the marriage remains theirs, and they do not benefit from a loss or increase in the estate of their spouse.
This type of ANC is normally appropriate for people who are getting married for the second or third time or who are getting married later in life.
An ANC with Accrual is where the spouses typically start with an inception value, which will not be shared with their spouse at the end of the marriage (through death or divorce) and the parties determine that they will effectively split (equally) between them any increase in their combined estates. The law states this in a more convoluted way, but essentially, on death or divorce, the inception values and any specifically excluded assets are taken off the combined total of the two estates and given to the parties, and we then look at what remains in the two estates (the accrual), and divide it in two equal portions, to be shared equally between the parties. ANC with Accrual mimics the sharing benefits of being married in Community of Property, without the risk of creditors attacking assets of the solvent spouse (assuming you put the assets in the name of the spouse not being declared insolvent).
The right to share in the Accrual of the other spouse’s estate only arises on dissolution of the marriage by death or divorce, or if the court orders otherwise. The right of a spouse to share in the Accrual of the estate of the other spouse during the subsistence of the marriage, is not transferrable or liable to attachment. During the marriage separate estates exist. Each spouse manages their own estate, and can freely alienate, or otherwise manage their affairs.
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