Out community of property' means that the parties involved entered into a contract, a written agreement Notarised by a Notary Public prior to the marriage in terms of which each spouse usually retains his or her separate property and have complete freedom to deal with that property as he or she chooses. If during the marriage, one spouse is declared insolvent, the others property is protected from the insolvent spouse's creditors, subject to Section 21 of the Insolvency Act.
Should you choose this option as your marital regime, you will have to decide whether the accrual system should be applied or not. Under both options of married out of community of property (with or without the accrual system), one spouse's creditors cannot hold the other spouse responsible for debt repayment, in direct contrast to the case where the parties are married in community of property. The accrual system is applicable to all marriages out of community of property, unless the prospective spouses specifically exclude the accrual system in their contract. 'Accrual' means increase and the accrual system is a form of sharing the assets that are built up during the marriage.
The underlying philosophy in respect of the accrual system is that each party is entitled to take out the asset value that he or she brought into the marriage, and then share what they have built up together. It is however possible to draft the Antenuptial Contract in such a way that the parties share both their pre-marital and post-marital assets on a 50/50 basis, just as if they were married in community of property, but without incurring liability for each other’s debt. Best suited for younger couples. Especially where one of the spouses has his/her own business.
|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.|