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.
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