Marriage and Matrimonial Property

 

 

 

Although not legally required, it's strongly recommended that each party have their own lawyer when creating an ANC without accrual.  This ensures independent advice tailored to each person's needs, protects individual interests, helps avoid future disputes, facilitates clear negotiation, and provides an impartial explanation of the contract.  While using one lawyer might seem cheaper initially, the risks of not having independent legal advice outweigh the cost savings.  Separate lawyers are a wise investment to protect each spouse's interests.

Arrange a consultation with the Notary (an attorney with the additional qualification of a Notary Public) before the marriage. The Notary will draft the Antenuptial following the instructions obtained at the consultation and will then arrange for the parties to attend at his/her office to sign the Antenuptial in his/her presence.

The original ANC is sent to the Deeds Office for registration and must be registered within three months of the date of the marriage.

Your ANC without accrual keeps your finances separate during your life, but your will is what determines where your assets go after your death.  You have full testamentary freedom to leave any portion of your estate, including inherited assets, to your spouse in your will.

 

Here are some of the drawbacks just in brief, discussing these with your attorney is always the best way forward

  • No Sharing of Growth
  • Need to keep accurate accounting records.
  • It can feel unromantic
  • Potential for Financial Inequality
  • Complex Estate Planning
  • Perception Issues
     
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Understanding Antenuptial Contracts without Accrual

An Antenuptial Contract (ANC) is a legal agreement made before marriage that determines how a couple's assets and liabilities will be managed during the marriage and if it ends in divorce or death.  Because it has long-term financial consequences, it's vital to speak with an attorney.  A common ANC type is "Out of Community of Property without Accrual."

This system treats each spouse as financially independent, almost as if they were still single financially.  With this regime, each spouse's assets and debts, whether they existed before the marriage or were acquired during it, remain exclusively theirs—what you own is yours, and what your spouse owns is theirs.  

Earnings, purchases, inheritances, and anything else acquired belong solely to the spouse who gets them.  Bank accounts are separate, and one spouse's debts are their responsibility alone.  If one spouse becomes insolvent, the other's assets are safe and creditors can't touch them.  Ending a marriage under this regime is financially simpler and quicker because there's no shared estate to split.  

Importantly, any increase in wealth or debt one spouse accumulates during the marriage is not shared with the other if there's a divorce or death. This is the crucial difference between "with" and "without" accrual.  Choosing an ANC, especially without accrual, is a major legal decision.  You should discuss your situation and goals with an attorney to be sure it's right for you.

Deciding if an Antenuptial Contract without Accrual Right for You

Choosing the right marital regime is a deeply personal decision, and at Aucamp Attorneys, we understand that one size doesn't fit all.  An ANC without accrual is a powerful tool for couples who value complete financial independence.  It's particularly well-suited for those entering a marriage with significantly different asset levels, or where one partner has substantial existing debts they wish to shield from the other.  This type of contract ensures that what's yours remains yours, both during the marriage and should it end.  Your pre-marital assets, inheritances, and anything you acquire in your own name will stay exclusively yours, regardless of what the future holds.

However, it's also important to be aware of the other side of the coin.  An ANC without accrual means that you won't share in the growth of your spouse's assets during the marriage, and they won't share in yours.  While this offers strong protection, it also means a complete separation of finances.  This might not be the best fit for couples who envision a shared financial future and want to build their wealth together.

At Aucamp Attorneys, we'll take the time to understand your unique circumstances, your financial goals, and your relationship dynamics.  We'll guide you through the intricacies of an ANC without accrual, ensuring you fully grasp its implications, both positive and potential challenges.  We're here to help you make an informed decision that's right for you and your future.  Contact us today for a consultation – we're ready to listen.

How Does an ANC Without Accrual Affect Property in Marriage?

An Antenuptial Contract (ANC) without accrual significantly impacts how property is owned and managed during your marriage.  It's crucial to understand these implications before making this important decision.  This type of ANC aims to keep your finances largely separate, but there are nuances to consider.  While this contract clarifies asset and debt ownership during the marriage and in case of divorce, meticulous record-keeping is essential.  

We strongly recommend keeping detailed records of your pre-marital assets, any gifts or inheritances received, and carefully considering any joint financial obligations you and your spouse might undertake.  It's also important to remember that even with an ANC without accrual, both spouses have a legal obligation to support each other financially if one is unable to support themselves.

Here's a breakdown of how property is typically handled under this regime:

  • Property Owned Before Marriage - Anything you owned before the marriage—a house, car, investments, etc.—remains exclusively yours. Your spouse has no claim to these assets.  If you sell a pre-marital asset and buy a new one, that new asset also remains your separate property.
  • Gifts and Inheritances - Gifts and inheritances you receive during the marriage are also considered your separate property.  However, it's vital to keep these funds separate.  If you mix them with joint finances—for example, by depositing them into a joint account or using them to buy a jointly owned asset—they may lose their separate status.  Keeping these funds in an account solely in your name is the best way to protect their individual ownership.
  • Joint Assets - The only assets you and your spouse will typically own jointly are those you intentionally purchase together during the marriage, such as a family home, a vehicle, or a joint investment account.  In these cases, you'll each own an equal, undivided share.
  • Debts - Generally, debts incurred during the marriage are the sole responsibility of the spouse who incurred them.  However, there are exceptions.  Joint debts, such as mortgages, car loans where both names are on the loan, or credit cards held jointly, are shared equally between both spouses.

What Should I Consider Before Signing an ANC Without Accrual?

An Antenuptial Contract (ANC) without accrual offers significant financial independence, but it's crucial to carefully consider all aspects before signing.  At Aucamp Attorneys, we believe in empowering you with the information you need to make informed decisions. Here are some vital questions to ask yourself:

  • Joint Property - How will assets acquired during the marriage be handled?  Even with an ANC without accrual, you might choose to acquire some assets jointly.  Will these be divided equally (50/50) upon divorce, or will another percentage or method be used?  This needs to be clearly defined in the contract.
  • Growth of Joint Property - If you do own joint property, how will any increase in its value be distributed?  Will the increase be shared proportionally to the initial contributions, or will another arrangement be in place?
  • Spousal Maintenance - Will spousal maintenance (alimony) be waived or provided for?  An ANC without accrual doesn't automatically preclude spousal maintenance. This is a separate issue that must be addressed in the contract.  Will one spouse be entitled to support from the other in certain circumstances, and if so, under what conditions?
  • Debt Distribution - How will debts be handled, particularly those incurred jointly?  While the general principle is separate debt, certain debts might be shared.  The ANC should clearly outline how these will be allocated in case of divorce.
  • Professional Advice - Don't navigate these complex issues alone.  Consult with legal and financial professionals.  A lawyer specializing in family law can explain the legal implications, while a financial advisor can help you understand the long-term financial impact of your choices.

An ANC without accrual can provide peace of mind and financial security by clearly defining separate assets.  However, open and honest communication with your partner is paramount.  Working together, and with the guidance of experienced professionals, you can create an agreement that reflects your unique circumstances, needs, and long-term goals.  Contact Aucamp Attorneys today for a consultation – we're here to help you make the best decision for your future.

Changing your Antenuptial Contract at a later stage

While an ANC without accrual offers a clear framework for financial independence in marriage, it's not set in stone. It is possible to change an ANC after you're married in South Africa, but it's a complex process. Here's what you need to know:   

It's Not a Simple Process

Changing your marital regime requires a formal application to the High Court.

This involves legal representation and can be costly. The court needs to be convinced that there are sound reasons for the change and that it won't negatively impact any creditors.   

Key Requirements

  • Joint Application - Both spouses must agree to the change and jointly apply to the court.   
  • Valid Reasons - You'll need to demonstrate valid reasons for wanting to change the ANC. These reasons must be substantial and justify the alteration of your financial agreement.
  • Notice to Creditors - All creditors must be notified of the proposed change to allow them to object if they believe their interests will be prejudiced.   
  • No Prejudice to Others - The court will carefully assess whether the change will harm the financial interests of any third parties, including creditors.   

Ultimately, the court has the final say. Even if you meet all the requirements, the court may refuse the application if it's not convinced that the change is justified and fair.

Why It's Complex

The reason for this rigorous process is to protect the financial interests of both spouses and any third parties involved. It prevents one spouse from unilaterally altering the agreement to the detriment of the other or to avoid financial obligations.

Alternatives to Consider

Before deciding to change your ANC, consider whether there are alternative solutions that might better address your needs. For example, if you're looking to share certain assets, you could explore co-ownership agreements or trusts.

Seek Expert Advice

If you're considering changing your ANC, it's crucial to seek legal advice from Aucamp Attorneys specializing in family law. They can assess your specific situation, advise you on the legal process, and help you prepare a strong application to the court.   

In Conclusion

While it's possible to amend an ANC without accrual, it's not a straightforward process. It requires a court application, valid reasons, and proof that the change won't harm anyone's financial interests. It's essential to carefully weigh the pros and cons and seek professional guidance before making any decisions.   

Relevant Acts Regarding Antenuptial Contracts Without Accrual in South Africa

When diving into the specifics of Antenuptial Contracts Without Accrual in South Africa, it’s essential to have a grasp of the legal framework governing these agreements. Here’s a list of relevant laws and acts that provide the legal backbone for these contracts:

Matrimonial Property Act, 1984 (Act No. 88 of 1984) - This is the cornerstone law that governs matrimonial property systems in South Africa, including those marriages entered into with an antenuptial contract. It outlines the default matrimonial property regimes and the requirements for opting out of the default regime through an antenuptial contract.
Deeds Registries Act, 1937 (Act No. 47 of 1937) - This act is relevant because antenuptial contracts must be registered in a deeds registry to be effective against third parties. It provides for the registration, transfer, and mortgage of property, including the registration of antenuptial contracts.
Marriage Act, 1961 (Act No. 25 of 1961) - While primarily governing the solemnization and registration of marriages in South Africa, this act indirectly affects antenuptial contracts as it lays down the legal foundations for marriage in the country.
Recognition of Customary Marriages Act, 1998 (Act No. 120 of 1998) - This act recognizes customary marriages and addresses how matrimonial property should be managed in such marriages. For couples entering into a customary marriage, an antenuptial contract might still be relevant depending on their chosen matrimonial property regime.
Civil Union Act, 2006 (Act No. 17 of 2006) - This act allows for the solemnization of civil unions, including same-sex marriages, and provides for the legal consequences of such unions. The act mentions matrimonial property regimes, making it relevant for partners considering an antenuptial contract.

Protect Your Financial Future: Secure an Antenuptial Contract with Aucamp Attorneys

Are you considering marriage in South Africa and want to maintain your financial independence? An Antenuptial Contract (ANC) without accrual is a powerful tool to protect your assets and ensure your financial security.

At Aucamp Attorneys, we understand the importance of safeguarding your financial well-being. Our experienced team specializes in crafting customized ANC agreements that align with your individual needs and circumstances. Contact us today