This matrimonial property regime also involves an antenuptial contract (ANC) where community of property and profit and loss are excluded. There is no joining of the spouses’ estates into one joint estate. Each spouse has his/her own separate estate, consisting of his/her premarital assets and debts, and all the assets and debts he/she acquires during the marriage. Being married out of community of property means that each party administer their own separate estates and have full and exclusive control over their own property.
The system excluding the accrual, as with including the accrual, gives each spouse absolute independence of contractual capacity and protects each spouse’s estate against claims by the other spouse’s creditors. If the parties willingly decided to marry out of community of property and without the accrual system, one of the parties cannot later request a redistribution of assets. In such a regime, upon divorce, each party will retain their separate estates, i.e. what they had upon marriage and including all growth to the separate estate that occurred during the marriage, minus any losses that may have been sustained.
It is not uncommon in marriages out of community of property for the parties to jointly own property. No joint holder can be forced against his/her will to retain his/her undivided half share in a property. If the parties cannot agree amicably on how to terminate their joint ownership, either of them may apply to a court for a directive as to how the joint ownership is to be terminated and may apply for the appointment of a receiver who will dispose of the property and distribute the proceeds among the parties.
Once the ANC has been drafted, both parties and the notary public must sign it in duplicate prior to the marriage. The ANC will then be forwarded to the Deeds Office in the area where the parties reside to be registered. Registration must be affected within three months of the date it was signed by the notary public. Apart from the usual fees, a prescribed fee is payable to the Deeds Office upon registration of the contract.
by Bianca Meyer
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)