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Friday, September 14, 2012

{Aisle Say by Candice}:Have you learnt your ANC…?

Antenuptial Contracts (ANC) stirs up a range of uncomfortable feelings for most bridal couples. Couples are often swept away in the romance of their special day and the last think they want to think about is the possibility of divorce - after all, contracts don’t appear in any fairytale. Realistically, couples need to remember that marriage is a binding legal agreement. It does feel awkward to be drawing up a contract in case of divorce when you haven’t even walked down the aisle. Your marriage contract has implications that go beyond divorce and it affects how your married life is governed.

In terms of South African law, a couple has 3 legal choices when getting married:
1. In community of property
2. Out of community of property including accrual
3. Out of community of property excluding accrual

In Community of Property:
• All assets and liabilities are pooled and shared equally, irrespective of whether such assets were acquired before or during marriage, unless expressly excluded by a donor or testator.
• All profits whether generated by the husband or wife are shared equally. The same applies to all losses/liabilities.
• The husband and wife now have joint control over their marriage estate. Any contract entered into by one spouse automatically includes the other spouse.
• Marriages in community of property are governed by our common law and if no Antenuptial Contract has been signed, then couples are automatically deemed to have been married in community of property.

Antenuptial Contract: Out of community of property including accrual:
• The accrual system was initially introduced to protect women who earned less than their spouses while married. Today the accrual system protects both parties.
• It is the sharing of growth in the spouses’ assets during the marriage. Each spouse has to declare the value of their own estate in this ANC at the beginning of their marriage.
• The growth in the assets accumulated by both spouses during the marriage must automatically be divided equally when the marriage end on death or divorce.
• This means that the spouse who earns less will still be entitled to half of the shared estate from the date of marriage to the date of divorce.

Ante nuptial Contract: Out of community of property excluding accrual:
• An ante nuptial contract or ANC means that you are married out of community of property, which is concluded by both parties before their marriage.
• Each spouse retains his or her own assets and liabilities whether they have been acquired before or during marriage.
• There is no sharing of profits and losses. Both spouses have full and independent contractual capacity when one spouse enters into a contract it automatically excludes the other.
• Upon death or divorce, each spouse keeps control over their own assets.
• If the marriage occurred after 1988 - the contract has to specifically exclude the system of accrual. In the absence of this exclusion the rules of accrual will automatically apply.

Tip for the Bride-To-Be: Get your marriage contract done early and tick it off the list so that you can enjoy planning the rest of your wedding without this looming over your head.

For professional assistance in getting your marriage contract drawn up, contact BBM Law via their website or call their Rosebank branch on 011-628-9300.

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Contact Candice* at Live Love Dream and invest in a Pre-Marriage Course to ensure your Happily Ever After...

*With a Degree in Psychological Counselling, Candice Luck of Live Love Dream specialises in presenting fun, modern Pre-Marriage courses, that assists couples in building a marriage based on communication, transparency and connection.

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