Marriage contracts
Grant Williams Lawyer
In South Africa there are basically 2 ways of marrying;
in community of property, or out of community of property (ie. With an antenuptial contract).
IN COMMUNITY OF PROPERTY
Should you choose to marry in community of property, the consequence is basically that you and your fiancé will, legally speaking, cease to exist as individuals and for all commercial purposes, will be seen as one. What you both bring into the marriage and all that you acquire during your marriage will form part of a joint estate to which you will both have equal, undivided shares. Should the marriage dissolve, the joint estate will be divided in 2 and be shared equally between the two of you. This is the most basic form of marriage and has the advantage that you do not need a notarised and registered contract thereby saving yourselves legal costs. Some also consider this to be the most equitable way of marrying.
The disadvantages to this form of marriage are however, many and usually less than ideal;
As explained, you relinquish your individual commercial identity which means, for example, that you may not contract individually, may not purchase property individually, the debts of one become the debts of both, therefore if one is sued, then both obtain judgements against their name, If one is sequestrated, then both are, if one is placed under debt review or administration, then both are. If one is considered a credit risk, then neither will be able to receive credit.
ANTE-NUPTIAL CONTRACT
If you choose to marry out of community of property, there are again 2 basic forms of contract (or “extremes” if you will): with accrual, or without accrual. In both instances, the one is protected in law from the debts of the other, and one may freely contract without the consent of the other. It follows therefore that should one enter into a fiscally risky situation, the risk to your personal assets can be minimised by transferring them into the name of the other.
Should you elect to marry out of community of property and without the application of accrual, the result will be that everything that belongs to you individually before the marriage and everything you acquire during the marriage will remain the sole property of the individual spouse. This applies to both assets and liabilities.
Should you elect to marry out of community of property and with the application of accrual, this basically means that the assets and liabilities that you each bring into the marriage remain yours alone but that the assets and liabilities that you acquire during your marriage form part of your joint estate for the purposes of distribution should your marriage dissolve. During the subsistence of your marriage however, you may still contract individually without the consent of your spouse and the assets acquired by one are protected in law from the liabilities of the other. This is therefore almost a hybrid form of marriage between in and out of community of property in that you still have the equitable split upon dissolution, but can protect assets. This form of contract however requires that you declare the value of your respective estates at the beginning of your marriage. Without getting too technical, the reason for this is mostly for the purposes of calculating an equitable division of your joint estate should you divorce (and if you cannot come to a mutually satisfactory agreement regarding your joint estate). The basic principle is that at the time of divorce each spouse’s estate is valued in order to calculate the growth (accrual) of each estate. The commencement values are adjusted to make provision for inflation and the spouse whose estate shows the smaller increase has a claim against the other for half the difference between the respective accruals. I should mention here that inheritances, legacies and donations received are left out of account in calculation of accrual. It follows logically that if your respective opening values are substantially the same, you may declare them as being NIL.
Between these two “extremes”, please note that specific assets can also be left out of this calculation should you so wish and agree (ie. Partly with, partly without accrual). Here one would usually list items like family heirlooms or valuable art work etc. In this case, you do not need to attach a Rand value, you would just need to describe the asset in such a way that it is readily identifiable. I should however point out that should you exclude an asset specifically and then, during the subsistence of your marriage, you sell the asset, you will lose the value of this asset in any subsequent accrual calculation. It is therefore usually more practical to use the value of the asset as explained above rather than specifically exclude that asset if you anticipate that it may be sold or destroyed during your marriage.
You may basically agree to anything in this contract so long as it is not illegal, impractical, immoral or impossible.
THE PROCEDURE
Should you and your fiance decide that an antenuptial contract is desirable, your first step is to contact a qualified and admitted notary public (an attorney with a further specialised qualification in notarial practice). You can then discuss your own unique situation and obtain advice on the form of contract that will best suit your mutual needs and negotiate the costs involved.
Once the notary public has all the information required, he/she can then draft a contract for your approval.
When you are both satisfied, arrangements can then be made for you to sign the contract in the notary’s presence (as required by law) that he/she may then “execute” the contract (ie. sign and place his/her official seal of office on the document) before your wedding.
Please note that if it is inconvenient or impossible for you to physically sign the contract in the notary’s presence, the way to accomplish a valid, legal and binding contract is for both of you to sign a special power of attorney attached to your contract authorising someone else (anyone of your choosing that is above 16 years of age and obviously close to the notary’s office) to sign the original contract before him/her.
Should you not personally know of anyone that can sign for you, the notary will usually be able to suggest a person for you.
This is not a general power of attorney so the person you choose can only perform this one function on your behalf and nothing else.
This signed special power of attorney together with a signed copy of your ANC is retained in the notary’s along with the duplicate original signed by your authorised agent.
The benefit of utilising this power of attorney is that the entire procedure can be done via email/telephone and “snail mail”.
Once signed and notarised, your contract is then lodged by the notary or his/her lodgement agent in the Deeds Registry for registration.
Registration does not have to occur before your actual wedding day but must be within 3 months of the contract being notarised.
From the date of lodgement, it takes between 7 to 10 days for registration to take place.
After registration, the Deeds Office numbers, scans and microfilms your original contract and then returns it to the notary. The notary will then return this original to you for your own safekeeping.
GRANT WILLIAMS
G.D.WILLIAMS & CO.
TEL: 033- 396 3051
FAX: 086 6565 264
PO BOX 100983
SCOTTSVILLE
3209
