Understanding your marital regime

2018-07-26 06:01
PHOTO: suppliedJoshna Panday.

PHOTO: suppliedJoshna Panday.

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THERE are two sets of marital regimes in South Africa:

•marriages in community of property; and

•marriages out of community of property or commonly known as an ante-nuptial contract.

Unless an ante-nuptial contract is entered into, all marriages are automatically deemed to be a marriage in community of property. This is where the parties share in their profits and loss with each spouse owning a fifty percent undivided share in the communal joint estate.

However, in choosing a marriage out of community of property, there are two types of ante-nuptial contracts to choose from:

•an ante-nuptial without the accrual system; and

•an ante-nuptial with the accrual system

In an ante-nuptial contract without the accrual, each spouse retains their respective estates throughout their marriage. Upon death, the deceased spouse estate is administered without affecting the surviving spouse estate (what is mine is mine and what is yours is yours).

An ante-nuptial contract with the accrual is when the couple declare a net worth prior to marrying and thereafter accrue an estate between them once married.

What this means, is that when the marriage dissolves either by death or divorce, the spouse’s estate which shows no growth or lesser growth acquires a claim against the other spouse for half of the difference between what has accrued between the two estates.

The accrual system is applicable to all marriages out of community of property, unless the couple specifically excludes the accrual system in their contract. It is therefore important to understand the principles behind these marital regimes prior to committing to a marriage.

All ante-nuptial contracts must be registered with the Deeds Registry prior to marriage.

This means that the couple has to go before a Notary Public and execute an ante-nuptial contract before registration of their marriage.

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

JOSHNA PANDAY (Director)

Conveyancing and Property Law – Commercial & Corporate Law – Family Law – Administration of Estates – Compliance Management – Litigation

Office: 081 216 8052 Mobile: 079 333 6993

Email: joshna@jpacn.co.za Website: www.jpacn.co.za

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