fbpx

Ante Nuptial Contracts Explained South-Africa

Consent by Spouse necesaary for certain actions when married in Community of Property

Transactions requiring the written consent of the other spouse - Marriage in Community of Property

Section 15(2) of the Matrimonial Property Act provides that a spouse may not, without the written consent of the other spouse:

(a) Alienate, mortgage, burden with servitude or confer any other real right in any immovable property forming part of the joint estate;1

(b) enter into any contract for the alienation, mortgaging, burdening with servitude or conferring of any other real right in an immovable property forming part of the joint estate;2

(c) alienate, cede or pledge any shares, stock, debentures, debenture bonds, insurance policies, mortgage bonds, fixed deposits or any other similar assets, or any investment by or on behalf of the other spouse in a financial institution, forming part of the joint estate;3

(d) alienate or pledge any jewellery, coins, stamps, paintings or any other assets forming part of the joint estate and held mainly as investments;4

(e) withdraw money held in the name of the other spouse in any account in a banking institution, a building society or at the Post Office Savings Bank of the Republic of South Africa;5

(f) as a credit receiver enter into a credit agreement as defined in the Credit Agreements Act, 1980 ( Act No. 75 of 1980), and to which the provisions of that Act apply in terms of section 2 thereof;6

(g) as a purchaser enter into a contract as defined in the Alienation of Land Act, 1981 (Act No. 68 of 1981), and to which the provisions of that Act apply;7

(h) bind himself as surety.8

In addition hereto, where a spouse wishes to institute or defend legal proceedings that do not relate to a spouses profession, trade or business, written consent of the other spouse is required.9

Transactions requiring informal consent - Marriage in Community of Property

Informal consent does not need to be in writing or witnessed and it may be obtained by ratification after the act.1 Section 15(3) of the Act provides that a spouse may not without the consent of the other spouse enter into the following transactions although ratification by the other spouse is permitted in s 15(4):

(a) alienate, pledge or otherwise burden any furniture or other effects of the common household forming part of the joint estate;

(b) receive any money due or accruing to that other spouse or the joint estate by way of -

(i) remuneration, earnings, bonus, allowance, royalty, pension or gratuity, by virtue of his profession, trade, business, or services rendered by him;

(ii) damages for loss of income contemplated in subparagraph (i);

(iii) inheritance, legacy, donation, bursary or prize left, bequeathed, made or awarded to the other spouse;

(iv) income derived from the separate property of the other spouse;

(v) dividends or interest on or the proceeds of shares or investments in the name of the other spouse;

(vi) the proceeds of any insurance policy or annuity in favour of the other spouse;

(c) donate to another person any asset of the joint estate or alienate such an asset without value, excluding an asset of which the donation or alienation does not and probably will not unreasonably prejudice the interest of the other spouse in the joint estate, and which is not contrary to the provisions of subsection (2) or paragraph (a) of this subsection.

 

Matrimonial Property Act 88 of 1984s 15(4). In this regard, either oral or tacit consent could be sufficient.

 Consent unnecessary - Marriage in Community of Property

Consent is unnecessary for a certain transaction, specifically those transactions that are performed by the spouse in the ordinary course of his or her profession, trade or business;1 transactions on the stock exchange of listed securities and deposits into a banking institution in the name of the spouse who wishes to deal with the deposit.

 

A contract entered into without the necessary capacity is void except when the act specifically makes provision for third parties to hold the joint estate liable.

Marrying in Community Of Property hinders the parties ability to do business. There is no freedom to trade by either of the parties.

 

Answers to frequently raised objections against Antenuptial Contracts

Prenuptial agreements have often been represented as “weapons” that spouses use in a bitter divorce or is construed as pessimistic, “worst-case-scenarios” that seem to say that a marriage is doomed from the start.

As a result, many people voice strong objections when their spouse-to-be suggests that they create a prenuptial agreement. Most of these objections come from the heart not the head because prenuptial agreements are, in fact, a wise “insurance policy” for any marriage.

Following are the logical answers that may set aside emotional objections.

Prenuptial Agreements Always Favour the Husband/Wife

In order to be upheld by the court, prenuptial agreements must be fair and equitable in the eyes of the law.

A Prenuptial Agreement Means We Don’t Trust Each Other

A prenuptial agreement can only be created in a trusting atmosphere where both parties feel free to offer “full disclosure” regarding their assets and debts. These “intimate” revelations often open the door to resolving other important issues.

Even If We Divorce, I’m Sure It Will Be Amicable

Even the most loving marriages can end badly. There’s just no way to know. A well-drafted prenuptial agreement will help ensure that there is no emotionally and financially draining court battles in the future on the issues covered in the prenup.

Neither of Us Has a Lot of Assets

Most young couples have not yet accumulated large estates. In time however they will accumulate.

We’re Not Going to Ever Get Divorced

Sadly, as divorce statistics demonstrate differently. Much of the advantages of entering into a antenuptial agreement has nothing to do with divorce for instance protecting a spouse from the creditors and debt of the other spouse.

MARRIAGE OUT OF COMMUNITY OF PROPERTY WITH THE ACCRUAL SYSTEM

MARRIAGE OUT OF COMMUNITY OF PROPERTY WITH THE ACCRUAL SYSTEM

The parties enter into an Antenuptial Contract and include the Accrual System. Each partner states the value of their respective assets (net asset value) at the beginning of marriage. Thereafter any assets accumulated are shared 50/50. One can state that specific assets be excluded from the accrual system, such a property or shares etc.

Advantages of Marriage out of Community of Property with application of the Accrual System

• Both parties share in the wealth accumulated during marriage.

• If any party owned property before the marriage, it remains the property of the person who owned it.

• Each party has complete financial and contractual freedom.

• If one party incurs debt or liability, it cannot be claimed from the estate of the other party.

• In the case of divorce, any assets accumulated during the marriage are shared – it doesn’t matter who acquired them. Each partner’s current net asset value is calculated by subtracting all liabilities of that partner from his or her assets. The accrual is then shared equally.

• The antenuptial contract can be tailored to suit your needs.

• It protects the partner who remains at home to care for the family.

• In many ways the safest and fairest marriage regime.

What is the Accrual System and how is it calculated

The 'accrual' is the extent to which the respective spouses have become richer by the end of the marriage, in other words, the amount by which the spouses' joint wealth has increased over the period of the marriage. The spouse with the smaller accrual has a claim against the one with the greater accrual for half of the difference between the two amounts.

 

Assets automatically excluded from Accrual Calculation

Various assets are excluded from the determination of the accrual of a spouse's estate, they are:

• Any amount which accrued to the estate by way of damages other than damages for patrimonial loss;

• Any asset which has been expressly excluded from the accrual system in terms of the Antenuptial Contract of the spouses as well as any other asset which a spouse has acquired by virtue of his or her possession or former possession of such asset;

• An inheritance, a legacy or a donation which accrues to a spouse during the subsistence of his or her marriage as well as any other asset which he or she acquired by virtue of his or her possession or former possession of such inheritance, legacy or donation, except insofar as the spouses may agree otherwise in their antenuptial contract or insofar as the testator/testatrix or donor may stipulate otherwise;

• Donations between spouses other than a donation mortis causa (after death).

Definition and Purpose of an Antenuptial Contract

Definition and purpose of an Antenuptial Contract - An antenuptial contract arranges the matrimonial property system of spouses. It is concluded between two unmarried persons who are legally competent to enter into a marriage with each other. The contract must be followed by a marriage to have any force and effect whatsoever.

The purpose of an antenuptial contract is to exclude the community of property and profit and loss as well as to include or exclude the accrual system from the marriage.

Also known as a prenuptial agreement or prenup.

MARRIAGE IN COMMUNITY OF PROPERTY. (MARRYING WITHOUT AN ANTENUPTIAL CONTRACT)

The parties do not enter into a Antenuptial Contract before their marriage. Everything which is mine is yours, and everything which is yours is mine. This may sound lovely and in line with the spirit in which you enter marriage, but take a step back and look at the risks and implications of this choice in a modern world.

Benefit of a marriage in Community of Property:

• On death or divorce, the estate is divided equally.

Risks and Disadvantages to Marriage in Community of Property

• If one of the spouses fall into debt, creditors have a claim over the assets in the joint estate that’s the assets of both spouses.

• If one spouse has his/her own business and becomes insolvent, the communal home and all assets, in both the names of the spouses, becomes attachable by creditors

• There is no financial or even contractual independence as certain transactions, such the sale of shares, need the consent of both parties

• If one partner should die, the estate of both the deceased and surviving partner will be wound up because it is a joint estate – not great for the surviving spouse who will find themselves in legal limbo, possibly without access to funds in addition to the trauma of losing a loved one.

For further information contact:

Louwrens Koen Attorneys

Tel: 087 0010 733

E-mail: This email address is being protected from spambots. You need JavaScript enabled to view it.

Office 4, Second Floor, Northern Pavilion, Loftus Versveld, 416 Kirkness Street, Arcadia, Pretoria.