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Marriage out of Community of Property

The parties can draw up a contract in which they indicate that they want the marriage out of community of property.  This is termed an Ante Nuptial Contract (ANC).  The ANC can contain any stipulation that is not contra bonos mores (against goods morals).  In other words parties agree that community of property will not apply to their marriage.

 

An ANC contract is an agreement between the parties in terms of which they reach consensus on the patrimonial and financial consequences regarding their marriage.  The essential characteristic of a marriage out of community of property is that there is no joint estate.  The parties retain their respective estates as their own property and each administers his/her own estate independently.  They can however be joint owners of assets, for example a house, or a vehicle.  The independence can be seen that they can act independently and not be liable for the debts of one another.  However, an exemption is that when household necessaries are acquired, both spouses will be liable jointly and severally.

 

Marriage settlements can be determined in an ANC contract and are considered a donation, for example a house, cash, insurance policies or even the creation of a trust in favour of the other spouse.  Due to the accrual system, which can now apply to these marriages, these settlements are not often made in ANC's.

 

As there is no community of debt, creditors cannot attach the assets of the other spouse.  The parties are thus judicially equal but economically unequal.  Each party may freely dispose of his/her assets and make a separate will.

 

Marriage out of Community of Property with the Accrual System

Once the parties decide to be married out of community of property, they can also have the accrual system made applicable to their marriage.  The same principals which regulate the out of community of property marriage apply, but at the dissolution of the marriage either because of death or divorce, the spouse whose estate shows a smaller accrual has a claim against the other spouse for an amount equal to half of the difference between the accrual of the respective estates of the spouses.

 

The accrual system is sometimes referred to as a form of deferred community of property, however the parties are still independent and not liable for each other's debts.  The net initial value of a spouse's estate is to be determined, either at commencement or at the end of the marriage.

Legalities