Marriage Legal Considerations

Marriage – The Legal Considerations

Posted on Posted in Legal Advice

Experience has shown that the matrimonial property system applicable to an intended marriage is quite often one of the last things which parties take into consideration when planning their wedding day and subsequent marriage even though it will be of significant importance on dissolution of the marriage. 

There are three options to choose from, the option you choose, in conjunction with the Matrimonial Property Act 88 of 1984, will determine your property rights during your marriage and when it is eventually dissolved whether by death or divorce.

The different options are briefly explained below and will be discussed in more detail in future articles.

Marriage in Community of Propety

If no antenuptual agreement is entered into before conclusion of the marriage, the parties will automatically be married in community of property.

The legal consequences of this will be that all assets and liabilities (debts) will be shared equally by both spouses irrespective of whether such assets or liabilities were acquired before or during the marriage.

Spouses have equal powers of administration over their joined estate. There are certain important transactions, however, for which both parties will have to give written consent and others for which informed consent by both will be required.

Marriage Out of Community of Property with the Accrual System

Each party builds their own estate and retains control and responsibility of their own assets and liabilities during existence of the marriage.

There is no restriction on the contractual capacity of either party regarding their own estate during the existence of the marriage.

The accrual of the marriage, taking into consideration starting values and exclusions as contained in the antenuptual contract, will be shared equally between the parties on dissolution of the marriage.

If you wish to have the accrual system excluded, it will has to be specifically excluded in the antenuptual contract.

Marriage Out of Community of Property without the Accrual System

Each party builds their own estate and retains control and responsibility of their own assets and liabilities during existence of the marriage and on dissolution of the marriage. There is no sharing of the assets or liabilities between the parties.

There is no restriction on the contractual capacity of either party regarding their own estate.

Contact our Notary Public, Martine Viljoen, should you require further information or wish to have  an antenuptual contract drafted.

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