Marriage in South Africa: Understanding Marital Regimes and Ante-Nuptial Contracts
Have you ever wondered what the different marital regimes are that are available to spouses in South Africa, and what exactly it means to have an ante-nuptial contract (“ANC”)?
In this article we will be discussing the consequences of marriage in South Africa and what you should look out for before tying the knot.
Marriage in South Africa is the union of two persons, with the inability to validly marry another person during that time. It creates certain invariable consequences (that is, consequences that cannot be changed), such as:
- both spouses attain the status of a major;
- a right of intestate succession is created between the spouses; and
- a spouse’s capacity to act is restricted if the spouses are married in community of property.
However, there are also variable consequences of marriage, and these include the arrangements spouses are entitled to make insofar as their property is concerned. In order to do so, the spouses need to enter into an ante-nuptial contract (“ANC”).
These are the 3 types of marital regimes in South Africa:
1. In Community of Property
This is the automatic marital regime in South Africa if no ANC is concluded.
The following are the consequences:
- all debts incurred and all assets acquired before marriage become part of the joint estate after the marriage, and both parties are entitled and/or liable in such instances;
- the written consent of the other spouse is required in certain instances, such as the sale of immovable property; and
- at the end of the marriage, the joint estate is divided into two halves, with one half belonging to each spouse.
2. Out of Community of Property (Excluding the Accrual)
An ANC must be concluded before the marriage, and in the ANC the accrual system is excluded.
The following are the consequences:
- the spouses each have their own separate estates; and
- each spouse controls their own estate.
3. Out of Community of Property (Including the Accrual)
This is often the preferred marital regime. An ANC is concluded and the accrual system is included.
The following are the consequences:
- throughout the marriage, the parties have two separate estates and do not share in each other’s profits and losses;
- the spouses share in the assets acquired during the marriage, but that sharing only takes place once the marriage ends;
- in the ANC, a spouse may declare a commencement value, which consists of all or some of the assets they bring into the marriage. If no declaration is made, or if the liabilities of the spouse exceed their assets, the commencement value is deemed to be nil;
- damages for pain and suffering, emotional shock, disfigurement, loss of amenities of life and shortened life expectancy, as well as inheritances and donations, are automatically excluded from the marriage; and
- when the marriage is dissolved, the parties share in the assets acquired during the marriage, namely the accrual.
The accrual is calculated by subtracting the commencement value (the value of the estate when the parties married) from the dissolution value (the value of the estate at divorce).
The commencement value is adjusted by the consumer price index at the end of the marriage for purposes of calculating the accrual.