19/01/2022
According to statistics, the New Year sees a rise in divorce cases in South Africa. While, no one gets married with the expectation that divorce will happen, but unfortunately, a few marriages do end in divorce and, therefore, it is advisable to be aware of all the various matrimonial property regimes (MPR) that could govern your marriage.
1. Marriage in Community of Property:
This is the default MPR in South Africa. This means once the couple gets married a joint estate is formed – that is, all assets and liabilities of both parties from before the marriage are shared equally between both parties.
An important point to note, is that inheritances are only excluded from the joint estate is if the testator, in their testamentary document, specifically stated that the inheritance should not form part of the joint estate.
2. Marriage out of Community Property excluding the accrual system:
This MPR directs that spouses keep their estates separate after their marriage. Whatever assets and liabilities each spouse had before their marriage (as well as assets and liabilities accumulated after the marriage) remain part of their separate estates.
In order to enter into this MPR in South Africa, the couple will have to draw up an ante nuptial contract (ANC) which specifically states that accrual is excluded. This contract must be entered into before the couple get married. The ANC may be used to determine their own MPR – may include any provision provided same are not against the law.
Only an attorney who is a notary public may execute an ANC.
3. Marriage out of Community of Property with inclusion of the accrual system:
Where spouses enter into this MPR, one spouse will be entitled to a share in the growth of the two estates at divorce. This regime can ensure that spouses gain a fair of the estate once a marriage comes to an end. In essence, what belongs to each spouse before the marriage remains each spouses separate property, but anything earned during the marriage belongs to both of you. The right to accrual is only exercisable upon divorce.
An ANC will need to be drafted and executed by a notary public before the marriage in order to have this MPR.
To find out more, you may book a consultation with us. We are available to consult remotely or in-person at our offices. All consultations are by appointment only – contact us on [email protected] or on 0761179259.
