Marriage out of Community of Property without Accrual

You’ve already taken your first steps as a child; - taken great leaps through life. You are probably employed in a decent and steady job and you have found a partner with whom who you choose to walk through the rest of your life.

Congratulations! You’re now ready to tie the knot. But, before we jump ahead to your magical day, let’s take a very important step backwards. Have you considered the proprietary aspects of getting married? What does “proprietary” mean you may ask; a simple answer would basically be to refer to your assets and capital.

Are you going to share everything, anything, or nothing at all? You need to determine the marital regime you choose to get married under in order to protect yourself and potentially your Ante Nuptial Contract as well. You can get married in community of property, or you can get married out of community of property with or without the inclusion of the accrual system.

We are running a series of articles on each of these marital regimes, so this article will be focussing on being married out of community of property without the inclusion of the accrual system. Essentially, this would be your position if in answering the above question you choose to share nothing at all.

When you are married out of community of property without the accrual system, everything that you own is exclusively yours. The same is said for your spouse to be. There will be no sharing in assets (unless agreed upon otherwise which shall be discussed below) and nobody may go after your ‘spouse to be’ for any of your own liabilities and vice versa.

In South Africa, the automatic marital regime is that of in community of property. This is where everything is shared on a 50/50 basis (unless exceptional circumstances in the Ante Nuptial Contract exist to justify the contrary), further details are included in our article specifically relating to such a marriage.

There are however, a couple of Ante Nuptial Contracts in which being married out of community of property is “automatic”, these include if the parties are black South Africans who were married prior to 2nd December 1988.

Because (this was because this was the default system for all black South Africans in terms of the now repealed Black Administration Act) which is when the Recognition of Customary Marriages Act was promulgated, or if the country in which the husband is domiciled dictates that the parties will be married out of community of property.

However, a recent judgment in the High Court of South Africa in Durban was placed in a fantastic position to make a breakthrough in the ongoing amendments to our law.

Although the Black Administration Act was repealed due to the fact that it was inherently unconstitutional and was founded on the basis of the apartheid era, the Matrimonial Property Act remains to encapsulate the fact that all black South Africans who were married prior to 1988 are married out of community of property without the accrual as this was the case back then.

Section 22(6) of the Black Administration Act was repealed due to its unconstitutionality, so why do we have provision in our law which continues to enforce this section? I suppose the legislature maybe did not foresee the retrospective impact that including such a clause may cause. According to the Legal Resources Centre, approximately 400 000 women remain to be affected by this provision.

The Court declared that this remains to be unconstitutional as it discriminates against black women on the basis of both race and gender; and it went on to rule that all marriages that were entered into in terms of this Section are now deemed to be in community of property.

If you would prefer to remain married out of community of property without the accrual you then have the option to approach the High Court to declare your marriage as such.

Now if you do not fall into the above-mentioned Ante Nuptial Contracts; once you have considered the different marital regimes available to you, how do you go about being married out of community of property without the accrual?

In order to do so, you will have to sign an Antenuptial Contract (most commonly referred to as an Ante Nuptial Contract) which excludes community of property. This contract controls the Ante Nuptial Contractual consequences of being married.

An ANTE NUPTIAL CONTRACT has to be drawn up and signed by you and a Notary Public before you get married. Not every Attorney is a qualified Notary Public and they may therefore request that you sign a Special Power of Attorney (This is a document to grant your Attorney signing powers for a specified thing) to allow them to sign your Ante Nuptial Contract in the presence of a Notary Public.

The Notary Public will thereafter lodge your Ante Nuptial Contract with the Deeds Office for registration. The registration process may take up to three months, but it is not necessary for it to be lodged and registered prior to the date of marriage in order to be valid.

The Parties entering into the Ante Nuptial Contract are liable to pay Attorney’s fees, Notary Public Fees as well as the registration fee. If for some unforeseen reason your Ante Nuptial Contract is in actual fact not valid, you will be deemed to be married in community of property and the laws regulating this are enforceable.

The agreement is still binding between the Parties as they both had the intention to enter the agreement and the terms therein were agreed to. It will however not be binding on third-parties. This means that banks, other credit providers etc. may claim whatever sum may be owing from both of you.

For a small amount of people who are still among us today, the option to marry out of community of property with the inclusion of the accrual system was not an option. This is so because such an option only arose on 1st November 1984 with the promulgation of the Matrimonial Property Act.

Prior to this date, you could only be married in community of property or out of community of property without the accrual.

To some, this may not seem like a very important thing, but let us consider the change of times between 1984 and now. Many years ago, it was not necessary for both Parties to hold stable jobs.

It was very often the husband’s responsibility to bring home the income, and the wife would stay at home looking after children and/or the household. This may not be such a problem while you’re married, but when you’re divorced without a settlement agreement, the wife is basically destitute.

As stated above, when you are married out of community of property without the accrual, there is no sharing of assets. A reasonable inference could therefore be made in that as the husband was the bread winner and the only one working, logically all the assets would belong to him, right?

That’s the cars, house, furniture, cutlery, bedding, you name it and it is more than likely his. Upon divorce, the wife would literally be left with nothing, no assets and no means to purchase anything of her own.

Now if you think that’s tragic, let’s take it a step even further. Statistics show that in 1984, the average woman was 23 years old.

That means today they would be roughly 59 years old. Are you aware of any job availabilities for a 59 year old woman with little to no work experience? That is a very scary thought once it is all put into context.

The reason that this portion of the article has been more directed to the female sex is actually quite specific and not to pull your sympathy. Unfortunately, prior to 1984, women had very restricted access to the labour market.

A woman’s ‘household duties’ were also seen as much less important as the employment of the husband. It is, however, important at this juncture to point out that the Divorce Act has been worded in a way that both a man and a woman may have a justifiable claim for redistribution.

Thankfully, the Divorce Act was promulgated which provided a potential solution to those who are stuck in the above situation. The Divorce Act, which was promulgated in 1979, made provision for what is known as a “Redistribution of Assets”. A redistribution of assets is a means to redress the Ante Nuptial Contract which was prominent during the marriage. Although this option is available, the Court will only make an order for such a redistribution in very specific circumstances.

The person who is claiming a redistribution has to be able to prove that they contributed, directly or indirectly, to the maintenance - Ante Nuptial Contract and/or increase of the other spouse’s estate. This includes rearing and looking after children whilst the spouse is working, attending to the general upkeep of the home, cooking meals for the family etc.

This person would also have to provide the Court with enough reasons so that it is satisfied that making such a redistribution order would be just and equitable. Thankfully, it is not a material requirement for the spouse to prove exactly which assets they contributed to or exactly how they contributed to the growth of the other spouse’s estate. It is only necessary to prove that there was such a contribution.

Now that the history lesson is complete and you understand the “why’s” and “how’s”, let’s have a look at what is available to you now.

As was explained above, you have three options to choose from when it comes to your matrimonial property regime. In community of property, out of community of property with the accrual and out of community of property without the accrual. The former two are explained in separate articles.

If you choose to be married out of community of property without the accrual, there are pros and cons that come with this decision which may be looked at as follows:

Pros:
Your property is your own, you can buy what you want without any consent, enjoy it as you please and sell it again for your own profit.

You will not be held liable for any of your spouse’s liabilities, past or future, provided you do not sign as surety for same, and if you are the wealthier and more financially stable spouse, you do not have to share your profits. It is still common practice for spouses to purchase assets jointly and therefore each will still have a claim for their share in whichever asset is so shared.

Cons:
If you are not the wealthy or financially stable spouse, you do not get to claim from the other even if you directly contributed to their growth (redistribution of assets). And at the end of the day, an Ante Nuptial Contract just like everything else, costs you money.

In stating that you do not get to claim for redistribution, this is not to say that we are moving back to what things were like prior to 1984.

The Courts have decided that people now have the choice of three completely different marital regimes. It is your responsibility to choose the one which best suits your unique marital relationship. Prior to 1984, you only had two options.

There is another remedy to this though, but this remedy is seldomly successful and is even stricter when it comes to satisfying the Court. In any marital regime which is in existence today, we have something which is called a “Forfeiture Claim”. Although in proving the breakdown of the marriage fault is no longer a consideration, it may still affect the proprietary consequences therefrom.

A claim for forfeiture of benefits may be brought where one spouse would unduly benefit from the divorce and such a benefit is so unfair that the Court has to intervene.

Things that a Court would take into consideration for determining whether a claim for the forfeiture of benefits exist would be things such as the duration of the marriage (may sound silly, but imagine winning the lotto, getting married shortly afterwards only to get divorced again and you’re expected to share your lotto winnings.).

Circumstantially Ante Nuptial Contracts which gave rise to the breakdown of the marriage (you would be severely hampered in your future endeavours if you have been financially abused.

It is necessary to satisfy the Court on a balance of Ante Nuptial Contract probabilities that if a forfeiture order is not granted, the other party would unfairly and unduly benefit and you will definitely suffer prejudice.

If the Court is satisfied of this fact, they may then grant this order. A successful forfeiture of benefits claim would not force the other spouse to share their assets or the like, but they would have to forfeit the monetary benefits that may have come from that property.

Effectively, the law has progressed, become fairer and promotes equality between the spouses. With all of these options available to you, in the bluntest of phrases, if you are prejudiced by the marital regime of your choice; technically it is now your fault.

This is why this contract is so important, and even more so, you need to be fully informed of your different options so that you understand all the risks that exist for each marital regime.

It is important to remember that an Ante Nuptial Contract is essentially a contract and the normal rules flowing therefrom will still apply. We must therefore stress that you are fully informed before signing any type of Ante Nuptial Contract, or choosing not to, prior to your marriage.

With all of the above being said, we hope that this has provided you with a somewhat broad understanding of marriage out of community of property without the accrual. Although this has all been explained, it is still always best to seek out legal assistance regarding an ANC from someone who specialises in family law and deals with these things on a daily basis.


Duncan O’Connor

Candidate Attorney
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