Legal Talk

An In Community of Property marriage means that estate of the husband and wife is considered as a single estate. Both husband and wife are equally at risk and equally share the benefits of the other's assets and estate. This means both parties are liable for the debts and liabilities of the other. It doesn't matter which one of them incurred the debt. Whatever property either of them had either prior to or during the marriage belongs equally to both of them. In the event of one of spouse becoming insolvent, the other spouse, in most instances, will also be sequestrated.

All "Out of Community of Property" marriages, either with or without accrual have to be registered by means of an ANC. This means that the couple has to go before a Notary Public and execute an Ante- Nuptial Contract. The word "ante" means "before" marriage). The ANC must be done prior to the marriage being registered as a civil marriage with the Department of Home Affairs.

Once the ANC is executed, the couple would need to get the marriage registered with the Department of Home Affairs. To get married "out of community of property", the couple need to go to a Notary Public (who is a special type of attorney) and execute the ANC. If a couple have not gone to an Attorney and had an Ante-Nuptial Contract drawn up and notarized by a Notary Public, then the marriage would automatically be considered to be in community of property.

What is an ANC?

Before they marry, two people can enter into an agreement called an Ante-Nuptial Contract ("ANC"). This is a contract which must be entered into before the actual civil marriage. The word "ante"-nuptial is derived from the latin word meaning "before". In America, the terminology used for such contracts is "pre-nups". Provided it is not unlawful or against public morals, a couple can create any condition in their ANC that they would wish their marriage contract to be subject to. Generally however we have two types of ANC's, both of which exclude community of property and profit and loss but either "with the accrual system" or "without the accrual system", in place.

What does an "Out of Community of Property without accrual" marriage mean?

In this type of ANC, there is no sharing of debts or liabilities between the husband and wife. They each retain their independence. Their assets remain their own separate property and cannot be touched by any creditor. This also applies to any insolvency by one of the spouses. When the marriage terminates either through death or divorce, there is no accruing (hence the words "without accrual") of the assets of the couple. There is also no distribution of the assets on dissolution of the marriage.

What does "Out of Community of Property marriage With Accrual" mean?

This is also registered by way of an ANC and has all the same benefits as the one without accrual. However, when the marriage is dissolved, a calculation is done to determine how much of assets each of the spouses accrued for the duration of the marriage. They would have to indicate in the ANC, what the initial value of their respective estates was at the commencement of the marriage. The spouse whose estate shows a higher accrual would need to pay half the difference of the net accrual to the estate with the lesser accrual.

As a Notary Public, Fawzia is able to draft, execute and register your ANC at the Deeds Office according to what system will work best for you.

Know your rights! The Law Desk of Fawzia Khan & Associates. Giving You the Power of Attorney. Email fawzia@the lawdesk.co.za or call 031-502 5670 for legal assistance at competitive rates.