|Marriage in community of property||Marriage out of community of property with the accrual system||Marriage out of community of property without the accrual system|
|Before Marriage||No Antenuptial Contract||Antenuptial Contract entered into before marriage is solemnised||Antenuptial Contract entered into before marriage is solemnised|
|On date of Marriage||Both spouses estates join into one joint estate which belongs to both spouse in equal undivided shares||Two separate estates. Each spouse may deal with his/her estate as he/she wishes.||Two separate estates. Each spouse may deal with his/her estate as he/she wishes.|
|During the Marriage||Joint estate comprises assets and liabilities that belonged to either spouse at the date of and during the marriage, excluding the following: •Property donated or bequeathed subject to the condition that it shall be excluded from a community of property marriage; •Certain life insurance policies;||ASSETS EXCLUDED:|
• Inheritances, legacies and donations;
• Donations between spouses
• Certain life policies.
|Two separate estates. Each spouse may deal with his/her estate as he/she wishes. Any increase or decrease benefits or prejudices the relevant spouse only. Accrual system expressly excluded in the antenuptial contract.|
|End of marriage on death or divorce||The estate is halved and each spouse is entitled to an undivided half share.||Accrual = Difference between the net value at commencement (escalated) and the net value at dissolution of the marriage. -The net value at commencement is declared in the antenuptial contract / separate statement. If no net value stated in contract it shall be deemed to be NIL.||Each spouse retains his/her own assets and own accrual – no sharing unless Antenuptial contract compels donations or court orders transfer of assets. An financially dependant party can still claim maintenance.|
|Advantages||Promotes legal and economic equality.||Both parties share in the wealth accumulated during marriage Each party is free to conduct his/her own independent financial affairs. • If party goes into debt, it cannot be claimed from the estate of the other party. • In the case of divorce, any assets made whilst married are shared – it doesn’t matter who acquired them; each partner’s current net asset value is calculated by subtracting all liabilities from assets • The antenuptial contract can be tailored to suit the parties needs • It protects the partner who remains at home to care for the family||If one of the parties becomes insolvent, creditors may not attach the assets of the other • Each of the parties is still legally obliged to offer financial support to one another should one of the parties are unable to support himself/herself. • Full contractual freedom • In second marriages, marriages where the parties already have children , where both parties have already amassed a sizeable estate or in so called marriages of convenience it simplifies matters drastically.|
|Disadvantages||If one of the parties goes into debt, creditors have claim to all of both parties assets • If one of the parties has his/her own business and becomes insolvent, both parties assets becomes fodder for debt collectors • There is no financial or even contractual independence, certain transactions need the written or oral consent of both parties • If one partner should die, the estate of both the deceased and surviving partner will be wound up jointly – not great for the surviving partner who will find themselves in legal limbo possibly without access to funds in addition to the trauma of losing a loved one.||Need to keep accurate accounting records.||In the case of death or divorce, a spouse is entitled only to those assets accrued in his/her name.|
Should one of the spouses stay at home to raise children, that partner would not be entitled to the assets accumulated by the other partner.
|Best suited for||Younger couples where there is no business risk from either of the spouses. Outdated. Not advisable.||Younger couples. Especially where one of the spouses has his/her own business.||Second marriages, marriages where the parties already have children, where both parties have already amassed a sizeable estate or in so called marriages of convenience.|