Marriage out of Community of Property: Without the accrual system.
Such a contract is recommended where:
- Both parties are business people in an exceptionally high-income group and where they plan not to have children at all.
- A well-off widower and a wealthy widow conclude a so-called marriage for companionship.
- The interests of children may be involved in second and further marriages.
In these cases, independent legal advice for each of the parties is advisable especially for the women, who on account of domestic obligations may be out of the labor market for a long period, to ensure that her interests are properly protected. She must choose carefully.
Marriage out of community of property with the accrual system.
- During the marriage each spouse retains control of his or her own property, builds up his or her own estate and each is responsible for his or her own debts.
- On dissolution of the marriage by death or divorce, the value of the assets obtained during the marriage (the accrual) will be shared equally. The accrual is determined by calculating the difference in the net starting value and the net final value of the estate of each spouse with the exclusion of inheritances, legacies and donations. On dissolution of the marriage the value of the difference in the accrual of the two estates, taking inflation into account, is then divided equally.
- The Act enables each spouse to share in the accrual but also protects creditors.
- When the accrual becomes payable the court can issue an order for the deferment of payment or for payment in instalments.
- The accrual system is a modern, equitable system and may be conducive to harmonious marriage relationship.
- During the marriage the competence of the spouses to deal with their property is not limited in any way, provided that the one does not or will not seriously prejudice the right of the other to share in the accrual.
- It offers protection during the existence of the marriage against, for example, insolvency of one of the spouses and, at the same time, at dissolution of the marriage each spouse has an equal share.
- A possible disadvantage, especially in the case of a wealthy spouse, might be that he or she feels that he or she is not quite free to deal with his or her property since the other could apply to court for the immediate division of the accrual should the latter feel that the former, by entering into a specific transaction, might, prejudice his or her right to share in the accrual. This may cause friction.
- Another disadvantage of the accrual system is that spouses do not share in each other’s credit worthiness, which can have the result that the non-working wife may have little credit worthiness during the subsistence of the marriage if her estate is small.
- If you do not want the accrual system to apply, it must specifically be excluded in the prenuptial contract.