Your Marriage Contract.

Your Marriage Contract is one of the most important documents that you will sign in your life. Most people, unfortunately, see the antenuptial contract as a formality, without realizing the implications of such an important document.

Although we do not enter a marriage contemplating divorce, if you consider that this contract will govern what happens to your assets and liabilities in the event of divorce or death, it makes a lot of sense that careful consideration should be taken when drawing up this contract.

Marriage IN Community of Property

If you do NOT draw up an antenuptial contract before your wedding day, then you will automatically marry IN community of property. This means that everything you both own or owe is put together into a joint estate and will become the property or responsibility of both in equal and undivided share.

If the marriage should terminate, then both husband and wife will be entitled to one half of the joint estate and will also be liable for one half of any liabilities.

  • The disadvantage of being married IN community of property is that if one of the partners becomes insolvent, then everything that forms part of the joint estate will be attached and sold to remunerate the creditors involved.

Marriage OUT of Community of Property

If you choose to marry OUT of community of property, then each partner retains their own assets and liabilities, whether they are acquired before or after the marriage. This policy will remain even after death or in the event of divorce.

  • The disadvantage of this kind of contract comes where one of the partners might have been unemployed, even in the event of staying home to raise children. There would be no legal hold on the other partner for any remuneration.

Marriage OUT of Community of Property – with Accrual System

“Accrual” – meaning “increase” is a system whereby the assets that are built up during the time of the marriage are shared equally between both partners. This is, in most cases, the best option to take. In the case of divorce, each partner may take out the asset value that was brought into the marriage and then to share the rest that has been built up between the two of them during the time of the marriage.

  • The advantage of this kind of contract comes where one partner’s assets cannot be touched if the other partner becomes insolvent.

An antenuptial contract has to be signed BEFORE the marriage, in the presence of a notary and two witnesses. The contract is then registered with the Deeds office.

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