DIRECTORIES

The Legalities: Marriage Contract

Legalities Marriage Contract

There are certain legal formalities that need to be adhered to according to marriage and its proprietary consequences in South Africa which is governed by the Matrimonial property Act of 1984 where they introduced the system of Accrual into South African Law. These protect the individuals in the marriage should there be calls for a separation of property later. It is important that you and your spouse-to-be decide which form of marital contract you wish to enter into.

Below are three options to consider –

IN COMMUNITY OF PROPERTY – The two respective estates become one as at the date of the marriage. e.g. if one spouse owned a house prior to the date of marriage the other automatically becomes co-owner and is entitled to 50% of the value thereof upon death or divorce. The basic consequences will be that should either of you become insolvent you will both be insolvent. In the case of death, the estate will be frozen in totality and the surviving spouse will be left at the mercy of the executor of the estate while the estate is being finalised. The benefit of this system of marriage is that both spouses will equally share in the estate of each other.

OUT OF COMMUNITY OF PROPERTY – This requires the registration of an Ante-nuptial contract executed before a Notary Public. Prior to marriage both spouses remain owners of their respective estates and liabilities. Upon death or divorce each party retains what is theirs, unless a court of law orders otherwise. When in business this is a good option. In the event of either spouse being declared insolvent the other spouse will not automatically become insolvent. In the case of either spouse passing away the other spouse’s estate will continue to function independently. Logically this will also entail that the spouses do not share equally in the growth of each of their estates. Often this will have a detrimental effect on the estate of the spouse more inclined to running the household and raising the children.

OUT OF COMMUNITY OF PROPERTY INCLUDING THE ACCRUAL SYSTEM – This system differs in that the estates of the spouses are completely separate during the subsistence of the marriage but that the spouses share equally in the growth of each other’s estates at the dissolution of the marriage. This system is based on the principle of fairness assuming that not both spouses will have the same earning capacity during the subsistence of the marriage. Chances are that one of the spouses will spend more time managing the home and the children which will affect the earning capacity of that spouse.

YOUR LAST WILL AND TESTAMENT:
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Article Source: The Guide for Brides South Africa by Rosemary Attlee

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