Signing an antenuptial agreement contract (ANC) is certainly not the most romantic part of the wedding planning process, but it surely provides the most peace of mind! In the case of the dissolution of the marriage, either by death or divorce, it would have been crucial for any couple to consult with a Notary of Attorney before getting married to discuss the available ANC options…
An example of a common mistake too many people make is trusting that the priest or pastor who solemnises the marriage has the power to marry them out of community of property – and this is definitely not the way it is done! Firstly, the priest or pastor is only able to register the marriage after the Big Day at the Department of Home Affairs, and secondly, he or she cannot choose a marriage regime on behalf of the couple. The only way your marriage can possibly be considered out of community of property is by way of each person signing the antenuptial agreement prior to the wedding day.
So, for the contract to be validated, it needs to be registered by the Notary within three months after being signed in the Deeds Office. Should the contract not be registered on time and the couple gets married, their marriage will be automatically considered in community of property. This is due to a prerequisite after the registration of the antenuptial agreement: A marriage needs to be solemnised or concluded in order for the contract to be valid. But, if a marriage never took place despite having the antenuptial agreement registered in the Deeds Office, the couple will have to consult the Notary to cancel the contract.
Should a couple consider getting married out of community of property, they have two options. One, they get married out of community of property without the accrual. Or two, they get married out of community of property with the accrual.
Without the accrual, consideration is made for two separate estates after the wedding day – one for each person. Therefore, the assets and liabilities acquired both prior to and after the marriage will form part of two separate estates. Neither person will share in the profits or losses of the other’s estates.
With the accrual, two separate estates after the date of the marriage also exists, but the couple specifically states which assets acquired prior to the wedding day must be included (or excluded) from the accrual. Should the marriage dissolve either by divorce or death, the net estate value of both parties will be calculated and the person with the smaller value will be able to claim half of the difference in estate values. Also, each person is held liable for the debt acquired in his or her own estate only.
Fuchs Roux assures you the latter option is usually the best one, as it seems to give you the so-called best of both worlds!
For more information or to book your appointment, contact our helpful team today.