18Aug

Why sign an Ante-Nuptial Contract

 What is in the name of an Ante-Nuptial Contract and why sign one before marriage?   

Congratulations so you and your partner having decided to tie the knot after weeks, months or even years of courting. 


As a couple one of the most important things to discuss before marriage is marital regime should govern your marriage to safeguard both parties’ interests. 


Should you or should you not sign an ante-nuptial contract.  An ante-nuptial contract is applicable and relevant when you and your partner, spouse to be have decided to marry Out of Community of Property.  Out of community of property in the sense that your individual estates would not be joined together after matrimony.  If your intentions are not to be married in community of property where you will be jointly and severally held liable for each other’s debts and liabilities and the need to request each parties’ consent in terms of section 15(2) of the Matrimonial Property Act 88 of 1984 then sign an Ante-nuptial contract is the way to go. 


An ante-nuptial contract must be executed before the solemnization of the marriage and registered in the deeds office within 3 months of its execution.   If this is not done before a Notary prior to the solemnization of the marriage the parties will be considered as married in community of property.  The Notary will do the registration on your behalf at the deeds office and furnish you with the original registered contract after registration. In South Africa only two (2) types of ante-nuptial contracts apply; 

  • With accrual; or
  • Without Accrual

What does this really mean to you? 

Let’s break it down further:

A marriage out of community of property with the application of the ACCRUAL system is a marriage regime whereby the parties choose to marry out of community of property including the accrual system and expressly exclude in community of profit and loss.  


The accrual system provides for equal sharing of the profits (accrual) made by the parties during the subsistence of the marriage.  In choosing this option the parties can also choose to include or exclude assets acquired before the marriage. You must also keep in mind that if the commencement value of the estates is not specified at the commencement of the marriage it will be deemed that it was NIL.   

Further, inheritance, donations or non-patrimonial damages are excluded from the accrual system unless the parties agree otherwise in their ante-nuptial contract or if a testator or donor stipulates otherwise. 


At the dissolution of the marriage, be it by death or divorce the net estate values are then determined separately, and the estate with a larger growth will then transfer half of the difference to the smaller estate. 

Should the parties not be able to establish the commencement value of their respective estates prior to execution of the ante-nuptial contract and solemnization of the marriage a provision is made in terms of section 6 (1) of Act 88 of 1984 for the parties to register a Notarial Statement, which must be signed within six (6) months of date of marriage. 


Marriage out of community of property without the application of the ACCRUAL SYSTEM 


This marriage regime in terms of Chapter I (Act 88/1984) the parties must expressly exclude the accrual system. 

In this option there is juristic equality in that each party has full right of disposal over his/her own assets (i.e. you don’t need the consent of your spouse), but there is no financial equality in respect of any contribution the spouses have made in regards to necessaries for the joint household in the absence of an agreement in terms of section 23(4), unless there is an agreement thereto in terms of section 23(3) in marriages before 1 November 1984.  In this instance where the wife’s income is used only for household consumables and the wife has no claim to the husband’s estate and agreement would be best to cover the wife for losses incurred during the subsistence of the marriage. 

This option is recommended where both parties already have substantial estates or incomes and may also be appropriate in cases of second or subsequent marriages.   Basically it means what is yours is yours and what is mine is mine. 


This option warrants that one should draft a Will to provide for the other spouse when the marriage is dissolved by death. 


The marital regimes have also been touched on in our blog on “Is Divorce on the Cards”.









The information and material published on this website is provided for general purposes only and does not constitute legal advice. We make every effort to ensure that the content is updated with the most current and accurate information. Please speak to our lawyers on any specific legal problem or matter. We accept no responsibility for any loss or damage, whether direct or consequential, which may arise from reliance on the information contained in these pages. Please refer to the full terms and conditions on the website. For permission to reproduce an article or publication, please contact us ruth@rcrispattorneys.co.za.

Read More  
02Oct

Wills

Many South Africans find it daunting to make a Will as the thought of the end does not sit well with them or else they have the mind to do so, but don't seem to find the time to do so or for many other reasons they do not make a Will. 

Yes, making your last wishes is not easy as it brings to the fore the thought of the end of your life. So, why don’t you jealously protect that life that you led, leave a hassle free legacy.  When the time comes for somebody to read your Will you will be gone forever, but never to be forgotten as your family knows and understands that your wishes were made clear, you cared enough to stop the abuse that comes with contestation of estate inheritance. You will be leaving a good legacy if you leave a Will that is uncontested and valid in Law.

If you have a spouse, child/ren, grand-children, siblings or you are the only child it is still encumbered upon you to make a Will as you will be saving many unwarranted discussions regarding what your intentions with your possessions were and your wishes will not be met in the end as your estate gets administered under the Intestate Succession Act 81 of 1987 as amended.

Many people die without leaving a valid Will or a Will at all for the distribution of their estate. Some Wills may be contested or found to be invalid due to some technical irregularities and it is thus important that a Testator/Testatrix follows all proper formalities and involves the services of a legal practitioner to assist with these formalities.

Yes, it is said that you have freedom of testation, but errors unbeknown to you may cause your signed Will to be invalid.

What formalities need to be in place for a Will to be considered valid?

  • It must be in writing;
  • Signed by two competent witnesses;
  • Witnesses must both sign the Will in the presence of the Testator/Testatrix;
  • Signed in full at the end of the Will by the Testator/Testatrix or signed by someone other than the Testator/Testatrix in his/her presence and by his/her direction; and
  • There is also provision to sign with a mark (all processes must be followed in this instance). (ask us how)

Keep in mind that witnesses cannot inherit in terms of your Will so ensure that the two persons that sign as witnesses in your Will are not going to benefit from your Will. The courts do however have discretion to declare in terms of section 4A(2)(a) of the Wills Act 7 of 1953 as amended, that the witness may benefit, but why take that chance. (see Blom and Another v Brown and Others (2011) ZASCA 54; 45/10; (211) 3 All SA 223 (SCA) (31 March 2011)

It’s your money, your assets that you worked for therefore you should have a say in how it is distributed. If you pass away without leaving a valid Will your assets will fall into Intestate Succession whereby the Master of the High will determine how your assets should be administered and distributed. Imagine leaving your hard earned money and acquired assets to persons you never intended to benefit from your estate.

It is also important to remember to update your Will as your circumstances change.  If you have been divorced and made a Will during that time make sure to update your Will timeously as section 2B of the Wills Act will apply if you pass away within three (3) months of divorcing. Remember that from the age of 16 years you  are regarded as being competent to make your own Will, unless you are of an unsound mind and do keep in mind that you are able to update it as and when the need arises and your circumstances change.

A thought - W I L L:

W - well

I- I

L -left a

L-legacy?

*Yes, you did and your family will be the happiest for it.

We are offering you an opportunity to draft your Will for you for FREE, this to assist many South Africans to make a valid Will so that when they pass on their wishes are dealt with in accordance with their Will.

There are costs that comes with administering a deceased estate which will have an impact on the value of your estate.  We will also guide you to take out a policy that will be used to cover such expenses when the need arises.

Make a Will, let us help you today.

----




The information and material published on this website is provided for general purposes only and does not constitute legal advice. We make every effort to ensure that the content is updated with the most current and accurate information. Please speak to our lawyers on any specific legal problem or matter. We accept no responsibility for any loss or damage, whether direct or consequential, which may arise from reliance on the information contained in these pages. Please refer to the full terms and conditions on the website. For permission to reproduce an article or publication, please contact us ruth@rcrispattorneys.co.za.

Read More