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To get married IN or OUT of community of property, that is the question
05 December 2017  | Gerda Janse van Rensburg
 
An Ante nuptial Contract, also known as a Prenuptial Contract or Prenup, is a contract entered into by two people prior to their marriage, to stipulate the terms and conditions for the exclusion of community of property between them.

When you get married WITHOUT an ANC, you are automatically married in community of property.  In layman’s terms this means that you are now the ½ share owner of each other’s assets, debts and liabilities.  If one of you should have a bad debt habit, the other person will be responsible with them for all the bad decisions that they should make along the way.  Not the brightest move to make.

You can however decide to get married OUT of community of property, by drafting an ANC with a qualified NOTARY.

When choosing this option you have the option between one of the following systems:

1. Married out of community of property without accrual which means that each spouse retains his or her separate property and has complete freedom to deal with that property as he or she chooses.

2. Married out of community WITH accrual:

The accrual system is a form of sharing of the assets that are built up during the marriage. The theory is that each person is entitled to take out the asset value that he or she brought into the marriage, and then they share what they have built up together.

It is important to remember that the accrual system only applies if the marriage is dissolved – either by divorce or death. You cannot claim your share of the joint estate while you’re still married.

Also be sure that you use a qualified registered notary to draft and register your ANC to ensure that you a good ANC drafted.  A Notary Public is an attorney who has an intimate knowledge of certain acts, and the processes prescribed therein, and who is legally empowered to officially witness signatures, take statements and certify the validity of documents.  This attorney has written additional examinations and has been admitted as a notary to the High Court.

And finally, if you didn’t draw up an ANC, and realise you probably should have, you can convert from community of property to an ANC after marriage. It’s more expensive, and you do have to advertise so your creditors can object, but it’s possible, and a good lawyer should be able to guide you through the process. Just keep in mind, that this process is a HIGH court application, and thus very pricey.  It is advisable to agree on the marital details BEFORE marriage.