Advice to those planning to marry: Consider the legal options open to you

People about to marry should realise that the choice of the marriage contract which they enter into can have important implications regarding the ownership of the properties owned by one or both of the marriage partners.

This has recently been pointed out by Lanice Steward, MD of Anne Porter Knight Frank, as part of an intensive training programme recently undergone by APKF’s agents.

The alternative contracts available in South Africa today, said Steward, are marriage in Community of Property and marriage under the Ante Nuptial Contract system. At present the former system is still the most widely used.

In the Community of Property contract all properties are jointly owned by the couple and this includes property that previously belonged solely to one or other of the partners. Should the marriage end in divorce the assets will then be equally divided.

When a new property is bought, under the Community of Property contract both partners have to sign the purchase agreement and they will be registered as joint owners. Similarly, when selling both parties have to sign the agreement. Should this not happen the contract will not be binding.

With the Ante Nuptial Contract system, each partner retains “maximum contract independence”. This means that what they bring to the marriage remains theirs unless they put it in writing, with witnesses, that they are now sharing it. Either member of the couple can buy property in his or her own name. Even their primary residence will usually be bought in the name of only one member of the partnership and will remain the property of that person.

Since 1984 individuals married under the Ante Nuptial Contract are automatically married under the accrual system. Should they not want this they have to contract out of the accrual system. Under the accrual arrangement only the assets acquired after the marriage are jointly owned. This, in effect, puts them in some respects on the same footing as those married in Community of Property because if there is a break-up it will result in the party with the smaller assets being able to claim a share of the property registered after the marriage in the name of the party with the larger assets and the eventual division is usually done on a 50/50 basis.

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