22/07/2024
Understanding the Marital Dispensations of South Africa:
Before taking the next step in your relationship when deciding to “tie the knot”, understanding the different marital dispensations/regimes is crucial to securing your financial future together. The Matrimonial Property Act 88 of 1984 regulates the consequences of marriages and the various marital regimes in South Africa. The Act recognises three main marital regimes: Marriage In Community of Property, Out of Community of Property - Without The Accrual System, and Out of Community of Property - With the Accrual System.
Your choice of marital regime should be guided by your financial goals, personal circumstances, and the level of financial independence you desire. We can help you navigate these options to ensure that your choice protects your best interests.
What you need to know -
While a marriage In Community of Property is the default marital regime, requiring no prior formalities, it might not be the best regime for the modern, dynamic and ambitious couple, as both partners shall be liable for each other's debts. There is also a lack of financial independence, which can lead to complications, especially in the case of divorce, death or insolvency.
The other two marital regimes require a specific written agreement between the parties, which is further to be notarised and registered in the Deeds Registry Office, prior to the date of marriage. Let's delve deeper into these two dispensations to help you make an informed decision.
Marriage Out of Community of Property Without the Accrual System:
Opting for an antenuptial contract without the Accrual System means that each spouse maintains a separate estate. This regime ensures that what you bring into the marriage and acquire thereafter remains exclusively your own. Each spouse has full control over their assets and debts, promoting individual financial autonomy. One spouse is furthermore shielded from the other’s debts and liabilities, which can be particularly beneficial if one partner owns a business or is in a high-risk profession. In the event of divorce or death, asset division is mainly straightforward since each person retains what is in their respective names.
This regime can, however, disadvantage a spouse who is financially weaker or for example sacrifices career progression to support the family, as they would not benefit from the other spouse’s financial gains. There is furthermore no legal mechanism to share the wealth accumulated during the marriage, which can lead to financial disparity between spouses.
Marriage Out of Community of Property With Application of the Accrual System:
Choosing an antenuptial contract with the application of the Accrual System offers a middle ground. Each spouse retains their estate, however, the net increase/growth in value of their estates during the subsistence of the marriage is shared equally upon dissolution of the marriage by way of divorce or death. The accrual system ensures a fair division of the growth in assets accumulated during the marriage, which can be especially beneficial if one spouse has been a homemaker or taken a career break. Similar to the non-accrual system, each spouse is protected from the other's debts and has full financial autonomy. Spouses maintain control over their respective assets while sharing the benefits of their joint efforts during the marriage. Spouses can also elect to exclude certain assets from the accrual, which must be recorded and agreed upon in the antenuptial contract.
It is important, however, to understand that the accrual (the net growth value) must be calculated upon dissolution of the marriage and determining the accrual can be complex and may require financial assessments, especially in the case of divorce. The accrual is calculated by determining the difference between the net value of each spouse’s estate at the beginning and the end of the marriage. Initially, the value of each spouse’s estate at the time of marriage is established, taking into account any exclusions specified in the antenuptial contract. This initial value is adjusted for inflation using the Consumer Price Index. At the dissolution of the marriage, the final net values of each estate are determined. The net increase in each estate’s value during the marriage is then calculated, and the difference in accrual between the two estates is shared equally, ensuring a fair distribution of the growth in assets.
Contact any one of our legal professionals to assist with your antenuptial contract. Let us handle the legal complexities, so you can focus on planning the perfect honeymoon and building a life of happiness and security!