How marriage with an ANC (out of community of property) works
Updated: May 15, 2020
Getting married is a huge milestone in your life. It is important to get advice before entering into an antenuptial contract ("ANC") so that the ANC correctly reflects the intention of both parties. An ANC also has to be registered within 3 months of it being validly signed before the notary.
Failure to have an ANC signed before your marriage (NB- it needs to be signed before a notary) and registered in time, will result in the marriage being in community of property. If you do not have an ANC executed before solemnisation of the marriage, you may be able to have a postnuptial contract executed but this needs to be done via a special process through the High Court, and is a lot more expensive than an ANC.
To explain how being married out of community of property works, we briefly summarise it below.
If you are choosing to get married with an anteuptial contract, you can get married with the application of the accrual system, or you can get married expressly with the exclusion of the accrual system. Accrual in this context means "growth" and is the growth experienced from the commencement of the marriage to the date of dissolution of the marriage.
A marital contract with the application of the accrual system works as follows:
On death or divorce, the spouse whose estate shows no accrual or lesser accrual than the other spouse, will have a claim against the other spouses’ estate for ½ of the difference between them;
Accrual is calculated as nett value of estate at dissolution of the marriage (by death or divorce), less nett value at commencement of marriage;
Assets owned before commencement are not taken into account but a value of those assets must be inserted in the contract in order to be excluded. The exclusion of these assets should ideally be listed as specifically as possible (but not in addition to the commencement value)p;
It is usual to stipulate in contracts that the proceeds or re-investment or capital growth of such assets will not form part of the accrual calculation (provided this is the couples’ wish);
Donations, damages (i.e. if you get an amount from suing someone), gifts, bequests and inheritances do not form part of the accrual calculation.
In summary, the legal effect of the accrual system is that spouses, or their estates, share equally in the assets gained after commencement of the marriage when the marriage is dissolved less the commencement value. The basis for this is that during the marriage each spouse contributes in their respective ways to enable the other spouse to build up their estate, and therefore some are of the view that it is fair that each should share equally in the nett value of the other’s estate.
In contrast, the exclusion of the accrual system provides that both parties go into the marriage with whatever assets they own, and will leave the marriage with whatever assets they owned prior to or during the marriage. There is no claim against the other spouse for any growth in the other spouses’ estate on death or divorce.
If you are needing an antenuptial contract drafted, Spence Attorneys has a notary who is specifically qualified to assist with preparing and registering your ANC. Be wary of having one drafted by someone without having the notary explain the consequences of each marital regime in detail.
We can also assist with the application to High Court for a postnuptial contract.
Email firstname.lastname@example.org for assistance with your ANC. We are based in Pinelands but we can service clients all over South Africa.
DISCLAIMER: The above may contain errors and/or omissions and should not be regarded as legal advice and is for information purposes only.