Why Antenuptual Contracts Imply Financial Independence

Private Property South Africa
Anna-Marie Smith

Such as the protection it offers individual spouses from their estates becoming part of creditor’s claims against that of their marriage partner. The loss of a family home is but one example resulting from exceptionally high levels of consumer debt. In the case of accrual contracts, depending on individual agreements, it implies the sharing of profits once the contract is dissolved.

In last week’s article marriage contracts out of community of property was discussed. This week, the second article in the series of three, STBB - Smith Tabata Buchanan Boyes provides insight into antenuptial contracts with, or without accrual.

What defines marriage out of community?

An antenuptial agreement is a contract spouses enter into before their marriage. It determines that each spouse keeps what either partner brought into, and earned during the marriage. Individual spouses retain their contractual independence, with no need for each other’s signatures on contracts. Here spouses can own and deal with property independently. Without the other’s consent they are able to sell, donate or bequeath their property.

Example

A owns a property before marrying B, that in this case will remain part of A’s estate’s only, and A can deal with the property as pleases. The same applies if A acquired the property during the existence of the marriage.

Accrual in marriage out community of property

When the accrual system applies, the basic premise above is adapted and caters for individual needs:

  • Prospective spouses signed an antenuptial contract before their marriage, in which they agree that when the marriage comes to an end, a calculation will be done to equal the value of their separate estates. Effectively, half the difference in value between their separate estates accrues to the smaller estate when the marriage ends.

  • Parties are able to exclude certain assets from the accrual by naming them specifically in the antenuptual agreement.

  • Certain classes of assets are automatically excluded from the accrual, including inheritances and money awarded as personal injury damages. Property ownership often translates into one spouse inheriting property held as part of family assets over generations, a typical example being coastal and holiday homes.

Example

A and B married out of community of property and included the accrual system in their antenuptial contract. The property that A owned before marriage (unless it was specifically excluded from the accrual) will remain A’s own asset. But, on dissolution of the marriage through divorce or death, the increase in value of the property will be part of A’s accrual, and will be included when an assessment is made to equalize the accrual between A and B’s estates. If A acquired the property while married to B, the same principle applies. The value of A’s estate is then increased by the value of the property, forming part of the accrual shared between the spouses.

What happens if one partner pays all or most of the repayments on a mortgage bond?This frequently asked question often presents difficulties in legal practise, says Shereen Volks of STBB.**When one spouse’s contributions to the jointly gathered assets varies from the other, it may arise due to varying income levels between partners, or for the simple reason of practical financial management.

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