December 12, 2017

Until death do us part?

Starting a marriage is one of the most special moments you will experience as you plan a wedding and look forward to spending your life with that one special person.

As we all know, marriage does not always last and therefore proper planning must be done in order to keep your assets safe. It is extremely important that both parties understand the implications of the type of matrimonial property regime they are about to enter into.

Two main marital property regimes exist, married in community of property or married out of community of property.

The automatic matrimonial property regime is marriage in community of property of profit and loss, unless such is excluded by means of entering into an antenuptial contract, prior to the marriage being solemnised. Upon marriage, the separate estates of both the parties form a Joint Estate. All of the assets owned by the couple and any debts incurred before marriage, as well as any assets which may be acquired or debts which may be incurred after the marriage, form part of the Joint Estate. The Joint Estate is administered by both parties equally. They both own an undivided half share in the Joint Estate.

If a couple is married out of community of property, either with or without accrual, they enter into an antenuptial contract prior to the marriage being solemnised. If they choose marriage out of community without accrual, each spouse retains separate ownership of his/her own assets acquired before the marriage, and any assets acquired individually during the marriage. Each spouse is liable for his/her own debts. On termination of the marriage, each spouse retains his/her own assets.

Marriage out of community of property with accrual allows spouses to share equally in the growth of their estates upon the termination of the marriage, either by dead or divorce. It is important to note the accrual is only calculated upon termination of the marriage. All assets owned before the marriage can remain the separate property of each space, and may be excluded from the calculation of the accrual.

Our firm can assist in advising you of the options available before your marriage is solemnised and ensure that you understand the implications should the marriage end in divorce or death.

 

Raullene Marais
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