Marriage Contracts

Marriage Contracts

TMF Attorneys specializes in drafting detailed marriage contracts between you and your spouse before you get married. Our services also include consultation, drafting and antenuptial (prenuptial) registration.

What Is an Antenuptial Contract?

An antenuptial contract is a written agreement between two people who are about to get married. The antenuptial contract sets out the terms of future earnings, control of property and assets of each party. The division of estates in the event that the marriage is dissolved or in the event that one of the parties passes away.

When getting married, you have three main types of marriage contracts that are as follows:

In Community of Property
Out of Community of Property With the Accrual System
Out of Community of Property Without the Accrual System

1. Marriage In Community of Property

In South Africa if you do not enter into an antenuptial contract prior to your wedding, you will by default be married in community of property.

All the assets and liabilities before and after the marriage are joined into a joint estate. The only way to divide the estate is if the spouses decide to terminate the marriage or one of the spouses pass away.

In a perfect world this would be ideal. However this marital property regime does not protect spouses against insolvency.

2. Out of Community of Property With the Accrual System

The value of prospective spouses, respective assets are stated at the beginning of the marriage. A spouse can state that certain assets be excluded from the accrual system, for example property or shares.

The advantages of a marriage out of community of property with the accrual system is that the parties share in the wealth accumulated during the marriage. Spouses have complete financial and contractual freedom.

In the event of divorce spouses current Net asset value are calculated by subtracting all liabilities of that spouse from his or her assets the accrual is then shared equally.

3. Out of Community of Property Without the Accrual System

In the event of insolvency, creditors may not attach the assets of the other spouse. Full contractual freedom makes this marital property regime very popular for couples entering into a second or third marriage. 

There are disadvantages with a marriage out of community of property where the accrual system is excluded. In the event of death or divorce each spouse is only entitled to assets accrued in their own name.

What Is the Accrual System and How Is It Calculated?

The accrual is the extent to which the respective spouses estates have grown at the end of the marriage. In other words, the amount by which the spouses joint wealth has increased over the period of the marriage. 

The spouse with the smaller accrual has a claim against the spouse with the greater accrual for half of the difference between the two amounts.

How May We Assist You?

Talk to TMF Attorneys before you walk down the aisle, let us assist you with the legalities so you can focus on your big day.

TMF Attorneys will ensure that you are aware of the matrimonial systems available, the implications of each and the processes involved to ensure that the most appropriate system will apply to your marriage.

We will also explain what documents are needed and attend the Deeds Office to have the contracts formally registered.

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