Marriage in community of property versus the ante nuptial contract
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One of the biggest decisions a person can make in his or her life is what matrimonial regime they should follow when getting married (just ask Paul McCartney).
If you get married in community of property, at the time of dissolution of the marriage the parties as a general principle split the assets equally, as well as the debts. The danger with getting married in community of property is that a creditor of one party can sue the other party if need be.
Should you get married with an ante nuptial contract your separate assets will be protected in the event of a creditor suing your spouse for monies owed. One must distinguish between getting married with the application or the exclusion of the accrual system.
Should you decide to get married with the application of the accrual system a contract will be signed wherein each spouse sets out the nett commencement value of his or her assets. Should your nett commencement value be nil, and at date of dissolution of the marriage it is R1 million your spouse will be entitled to half of the accrual, which in this case is R500,000.00. A party is entitled to exclude any assets which he or she chooses from the accrual e.g. If you own a house before you get married you may specifically exclude this from the accrual so that at time of dissolution of the marriage your spouse has no claim to it.
Should you get married with the exclusion of the accrual system, this would basically mean that your spouse is not entitled to claim any of your assets at dissolution of the marriage and vice versa.
The accrual system only came into being in 1984 and all marriages with an ante nuptial contract prior to 1984 would therefore be with the exclusion of the accrual system.
The costs involved in having an ante nuptial contract drafted would vary from attorney to attorney and could be anything up to R2000,00. It would be money well spent to consult an attorney prior to getting married for advice on a suitable matrimonial regime.
Couples should consider getting married with the application of the accrual system, as it is often the fairest way to get married. It is similar to being married in community of property but it also offers an individual protection against the creditors of his or her spouse.
written by Peter Baker, a specialist Cape Town family lawyer.