In Community of property


Out of Community of property WITHOUT the accrual system

Out of Community of property WITH the accrual system

Important to know

  • An Antenuptial Agreement must be signed:
  • AFTER you considered all the options and carefully selected the option best suited for you
  • BEFORE your get married
  • IN FRONT OF A NOTARY (personally or by someone authorised by you)
  • The Antenuptial Agreement must be REGISTERED at the DEEDS OFFICE within 3 MONTHS after you signed the ANTENUPTIAL AGREEMENT.
  • Failing above, you will be married IN COMMUNITY OF PROPERTY
  • OUR COSTS: R1 500-00 (including registration costs of the Deeds Office)

IN Community of Property

“What is mine is yours, and what is yours is mine”

From date of marriage, you and your spouse will only have one joint estate and will share all assets and all liabilities.

In the pictures below, A has R10 000 and B has R8 000. Once they are married, A and B are joint owners of R18 000-00. If B borrow money from anybody, A will also be liable to repay the loan. At the end of the marriage, all assets and debts are divided equally between A and B.

BEFORE

DURING

AFTER

                                                                                        

No ANTENUPTIAL AGREEMENT is needed.

  • Both spouses must sign legal contracts (such as selling, buying or mortgaging of property or signing surety).
  • Should one of the spouses get sequestrated, the JOINT estate is sold to pay the debt.
  • You can still have your own separate Will. You will only be able to leave your half of the joint estate to your heirs.
  • The joint estate is divided equally between the spouses in event of death or divorce.

“What is yours is yours, and what is mine is mine”

Each spouse has his/her own separate assets and liabilities before, during and after the marriage.

Before

During

After

  • Each spouse is only liable for his/her own debt during the marriage.
  • You will not need the written consent of your spouse to enter into any legal contract.
  • If one spouse is sequestrated, only that spouse’s assets are sold to pay his/her debt.
  • In the event of divorce or death, you will have NO CLAIM against the estate of your ex-spouse due to being married to him/her, even if you have contributed to the growth in the estate of your ex-spouse.
  • If you want your spouse to benefit from your estate at your death, you must state that in your WILL.
  • You may consider getting married WITHOUT the accrual system, if you will not be financial dependent on each other, each has his/her own established estate and you will not be contributing, directly or indirectly, to the growth of the each other’s estate during the marriage.

“What is yours is yours, and what is mine is mine, but everything that we acquire during the marriage, will be divided equally when the marriage ends”

During the marriage, each spouse has his/her own separate assets and liabilities. The financial position is the same as in the option above (without the accrual system).The difference comes in when the marriage ends. Calculations are then done to determine if one spouse may have a claim against the other spouse.

 

A spouse will have an accrual claim against the other spouse, if his/her estate grew less during the marriage than the estate of the other spouse.

 

To calculate with how much each spouse’s estate grew during the marriage, the values and assets agreed in the ANTENUPTIAL AGREEMENT are used. The growths are added together and each spouse is entitled to a half thereof. The spouse with the smaller estate will have claim against the other spouse.

Before

During

After

  • Each spouse is only liable for his/her own debt during the marriage. Each spouse has his/her own assets.
  • You will not need the written consent of your spouse to enter into any legal contract.
  • If one spouse is sequestrated, only that spouse’s assets are sold to pay his/her debt.
  • In the ANTENUPTIAL AGREEMENT, each spouse must declare his/her:
    • NET START VALUE: Add up the value of ALL your assets (excluding the EXCLUDED ASSETS mentioned below) and deduct all your debt. The balance in Rand is your NET START VALUE.
    • EXCLUDED ASSETS: Any asset, that you currently have, may be excluded from the accrual system. The asset is kept separate and not taken into account when the start value or end value of the spouse are calculated. In other words, it is ignored when the growth in a spouse’s estate is calculated and therefor will not be subject to a possible claim from the other spouse. Examples of excluded assets are immovable property, pension, investments, shares or any other asset that grows in value.
  • Should there be a difference in the growths of between the spouses’ estates, the spouse with the bigger growth must pay half of the difference to the spouse with the smaller growth so that each will have a half share of their combined growths
  • Inheritances and donations are also excluded by the Law from the accrual calculations and not taken in account when the growth in the estate of a spouse is calculated.
  • Herewith an example of the accrual calculations:

SPOUSE A                                                                   SPOUSE B

End Value                       R20 000                               End Value                      R40 000

Less: Start Value           R10 000                              Less: Start Value           R20 000

Less: Excluded Assets  R 2  000                              Less: Excluded Assets   R          0

Less: Inheritance           R         0                                Less: Inheritance            R  2 000

                                         R  8 000                                                                         R18 000

TOTAL GROWTH (ACCRUAL) ACCUMULATED: R26 000

Total accrual is divided 50/50 between spouses = R13 000 each

 

  • You may consider getting married WITH the accrual system, if you foresee that due to the circumstances known or unknown to you, your estates may not grow equally during the marriage. One spouse may not be able to grow his/her own estate, but will be contributing directly, or indirectly, to the growth of the other spouse’s estate. This may result in an unfair situation when the marriage ends and you will rather share in the growths of each other’s estates.

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