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Marriage Out of Community of Property without application of the Accrual System

Advantages and Disadvantages of a Marriage Out of Community of Property Excluding Accrual

Advantages and Disadvantages of a Marriage Out of Community of Property Excluding Accrual

The parties enter into an Antenuptial contract before getting married in terms of which the Accrual system as contemplated in the Matrimonial Property Act is specifically excluded. The accrual system is thus must specifically excluded. The spouse's estates stay absolutely separate from each other. The parties have complete commercial freedom to trade and is completely independent of the estate of their spouses.

Advantages of a Marriage Out of Community of Property Excluding Accrual

Each spouse full authority and autonomy over their estate. They are protected from the creditors and business risks of their spouses and they do not share a credit record with their spouse. If one spouse incurs debt and is incapable to pay their debts, creditors have no recourse against the estate of the other spouse. A spouse's assets are protected in the event of insolvency of the other spouse. Both parties have the freedom to will their assets as they deem fit (freedom of testation)

Disadvantages of a Marriage Out of Community of Property Excluding Accrual

The parties do not share assets or accrual. Can be disadvantageous to a spouse who chooses to stay-at-home to raise children or is a home giver and thus do not have the same or any earning capacity as the spouse. In the event of a divorce, the non-earning spouse does not get to share in the estate of the income-earning spouse. At the dissolution of the marriage, this spouse will not have any claim against assets or accrual which may be unfair because the other spouse had the benefit of the other spouse being a home giver or raising the children. It is important to note that such a financially dependent spouse have a claim for maintenance against the other spouse.

A Marriage Out of Community of Property Excluding Accrual is best suited for.

Second marriages, marriages where the parties already have children, where both parties have already amassed a sizable estate or in so-called marriages of convenience or where the modern complicated dynamics of the modern family makes it unsuitable to choose one of the other matrimonial property regimes.

 

Also, see the following articles:

Advantages and Disadvantages of choosing between the different Matrimonial Property Regimes

Advantages and Disadvantages of Marrying In Community of Property

Advantages and Disadvantages of a Marriage Out of Community of Property with Inclusion of the Accrual System (With Accrual)

Comparison Table Marital Regimes. Compare your Marital Regime and Antenuptial Contract Options

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Online Application Antenuptial Contract

 

Marriage Out of Community of Property Without the Accrual System

Marriage Out of Community of Property Without the Accrual System

Out of Community of Property means that the parties involved entered into a contract, a written agreement Notarised by a Notary Public prior to the marriage in terms of which each spouse usually retains his or her separate property and have complete freedom to deal with that property as he or she chooses. If during the marriage, one spouse is declared insolvent, the other property is protected from the insolvent spouse's creditors, subject to Section 21 of the Insolvency Act. The effect is that the parties remain in the same position patrimonially as they were before the marriage. Each spouse retains his or her separate estate which he or she possessed before entering into the marriage, and each retains everything he or she acquires after the marriage. Each spouse has the full capacity to act. They can enter into contracts with each other and they are not liable for each other's debts

Should you choose this option as your marital regime, you will have to decide whether the accrual system should be applied or not. Under both options of married out of community of property (with or without the accrual system), one spouse's creditors cannot hold the other spouse responsible for debt repayment, in direct contrast to the case where the parties are married in community of property.

Without Accrual the parties specifically declare that the Accrual system as set out in the Matrimonial Property Act will not be applicable to their marriage and will specifically be excluded. Each spouse retains his/her own assets and own accrual – no sharing unless Antenuptial contract compels donations or court orders transfer of assets. In the case of death or divorce, a spouse is entitled only to those assets accrued in his/her name. Should one of the spouses stay at home to raise children, that partner would not be entitled to the assets accumulated by the other partner.

Practical for second marriages, marriages where the parties already have children, where both parties have already amassed a sizeable estate or in so-called marriages of convenience it simplifies matters drastically.

Comparison Table Marriage Out of Community of Property with other Matrimonial Property Regimes

 

 

Marriage in community of property

Marriage out of community of property with the accrual system

Marriage out of community of property without the accrual system

Before Marriage

No Antenuptial Contract

Antenuptial Contract entered into before marriage is solemnised

Antenuptial Contract entered into before marriage is solemnised

On date of Marriage

Both spouses estates join into one joint estate which belongs to both spouse in equal undivided shares

Two separate estates. Each spouse may deal with his/her estate as he/she wishes.

Two separate estates. Each spouse may deal with his/her estate as he/she wishes.

During the Marriage

Joint estate comprises assets and liabilities that belonged to either spouse at the date of and during the marriage, excluding the following:

•Property donated or bequeathed subject to the condition that it shall be excluded from a community of property marriage;

•Certain life insurance policies;

  • Delictual liabilities.

-Husband and wife have equal powers with regard to disposal of assets, contracting of debts and management of the joint estate. Can perform any juristic act with regard to joint estate without consent of the other spouse, except acts set out in Sections 15{2) and 15(3) of the Matrimonial Property Act.

ASSETS EXCLUDED:

  • Assets excluded in terms of the antenuptial contract;

• Delictual damages for non-patrimonial loss;

• Inheritances, legacies and donations;

• Donations between spouses

• Certain life policies.

Two separate estates. Each spouse may deal with his/her estate as he/she wishes. Any increase or decrease benefits or prejudices the relevant spouse only.

 

Accrual system expressly excluded in the antenuptial contract.

 

End of marriage on death or divorce

The estate is halved and each spouse is entitled to an undivided half share.

Accrual = Difference between the net value at commencement (escalated) and the net value at dissolution of the marriage.

-The net value at commencement is declared in the antenuptial contract / separate statement. If no net value stated in contract it shall be deemed to be NIL.

 

Each spouse retains his/her own assets and own accrual – no sharing unless Antenuptial contract compels donations or court orders transfer of assets.

An financially dependant party can still claim maintenance.

Advantages

Promotes legal and economic equality.

Both parties share in the wealth accumulated during marriage

Each party is free to conduct his/her own independent financial affairs.

• If party goes into debt, it cannot be claimed from the estate of the other party.

• In the case of divorce, any assets made whilst married are

shared – it doesn’t matter who acquired them; each

partner’s current net asset value is calculated by

subtracting all liabilities from assets

• The antenuptial contract can be tailored to suit the parties needs

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

family

If one of the parties becomes insolvent, creditors

may not attach the assets of the other

• Each of the parties is still legally obliged to offer financial support to one another should one of the parties are unable to support himself/herself.

• Full contractual freedom

• In second marriages, marriages where the parties already have children , where both parties have already amassed a sizeable estate or in so called marriages of convenience it simplifies matters drastically.

Disadvantages

If one of the parties goes into debt, creditors have claim to all of both parties assets

• If one of the parties has his/her own business and becomes insolvent, both parties assets becomes fodder for debt collectors

• There is no financial or even contractual independence,

certain transactions need the

written or oral consent of both parties

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

 

 

Need to keep accurate accounting records.

In the case of death or divorce, a spouse is entitled only to those assets accrued in his/her name.
Should one of the spouses stay at home to raise children, that partner would not be entitled to the assets accumulated by the other partner.

Best suited for

Younger couples where there is no business risk from either of the spouses. Outdated. Not advisable.

Younger couples. Especially where one of the spouses has his/her own business.

Second marriages, marriages where the parties already have children, where both parties have already amassed a sizeable estate or in so called marriages of convenience.