With due acknowledgement to the Law Society of South Africa

THE MATRIMONIAL PROPERTY ACT 1984

Whether you are already married or if you intend getting married shortly, it is important to know that this Act (associations) has a direct effect on your assets. It is, therefore, important that you consider it carefully!

Marriages contracted before 1 November 1984

• If you did not have an antenuptial contract drawn up, you are married IN community of property, but you may apply jointly to the High Court at any time to change your marriage to any form of out of community and also to have the accrual system apply to your marriage. There are, however, certain requirements for this.
• If you are married OUT of community of property (an antenuptial contract was entered into) you can change to in community of property. Again applications must be made jointly to the High Court.

Your attorney will fully inform you of the requirements

Marriages contracted after 1 November 1984

The matrimonial property system which you choose, will affect your whole future and the position of your assets.

You must exercise an informed choice: your choice will determine your proprietary rights during your marriage, as well as when it is dissolved – either by death or divorce.

What are your options?

• A marriage in community of property or out of community of property.
• In the case of out of community – with or without the accrual system.
• An antenuptial contract to suit your individual needs with or without the accrual system.

What steps do you follow to let a particular system apply to your marriage?

• In community of property applies should you marry without entering into any form of antenuptial contract.
• The accrual system applies should you enter into an out of community of property marriage in terms of an antenuptial contract without expressly excluding the accrual system. The accrual system can be excluded partially by, for example, a provision that the eventual distribution of the accrual will not be on a 50/50 % basis, but in another ratio or that the accrual system will not apply if the marriage is dissolved by divorce or if one of the parties is insolvent when the marriage ceases.
• Any other provision in your antenuptial contract can be made, provided that it is not contrary to the law or immoral.

Which system is the best?

• One specific system is not necessarily the best for all couples. Which system is best will depend on the individual needs and circumstances of each couple. In the case of a second marriage particular problems can present themselves.

Consult your attorney, individually should you prefer. Do not allow your heart to rule your head.