Frequently Asked Questions Marriage Contracts

Popular Questions
Marriage Contracts
Contracts

  • Which payment methods are available?

    We accept EFT, all debit and credit cards ass well as cash.

  • I have questions?

    Please contact with us to discuss your specific circumstances. It is important that both parties have a clear understanding of their marital regime choices before proceeding. Call Tel: 087 0010 733

    Contact Louwrens Koen Attorneys
  • How long does it take?

    Depending on the co-operation of both parties the process takes from one to 5 working days to complete. Registration of the antenuptial contract in the office of Registrar of Deeds takes about 8 working days and delivery of the registered antenuptial contract takes between 1 - 3 months.

  • Do we have to wait for registration of the antenuptial contract before we get married?

    No. On receipt of the signed antenuptial contract or power of attorney our notary public will issue a certificate to hand to the arriage officer.

  • What is your cost to register an antenuptial contract?

    Our all inclusive fee for the registration of the antenuptial contract is R1250.00. There are no hidden costs.

  • What is the accrual system?

    What is the accrual system? The accrual system is a formula that is used to calculate how much the spouse with the larger estate must pay the smaller estate if the marriage comes to an end through death or divorce. Only property acquired during the marriage can be considered when calculating the accrual.

  • What is nett commencement value?

    This is the amount that you are worth at the date of the marriage. To calculate this, subtract the total amount of your liabilities (debts) from the total amount of your assets (property). The remainder is your commencement value. Nett asset value at the inception of the marriage.

  • What is the power of attorney?

    The Antenuptial Contract must be signed in the Notary's presence by the intended spouses or by someone both have given a Power of Attorney to sign on their behalf.

  • What about my pension?

    Excluded.

  • I am about to inherit. What about inheritances?

    Excluded.

  • Why should we consider an antenuptial contract?

    Here are four important reasons to sign a prenuptial agreement before walking down the aisle.
    • You are Marrying Someone with Significant Debt.
    • You Wish to Protect Your Assets.
    • You Want to Ensure Financial Security for Both Parties.
    • You Want to Protect Your Business.
  • When should we enter into an antenuptial contract?

    Before entering into nuptials.

  • Does an cohabitation agreeent count as a marriage?

    No.

  • Can we amend or change our antenuptial contract?

    Yes the contract can be changed before getting married? Contact our Notary Public for further information.

  • What other legal matters should I we consider before getting married?

    Getting Married? What other legal issues you sho

    Congratulations on taking the big step to get married. There are so many things for you to consider at this stage and unfortunately we will not lighten that specific burden. But this document will be of utmost value in your life together and we urge you to read it with care.

    What is estate planning?

    Estate planning involves the application of recognised techniques to protect, preserve and grow an individual's or family’s estate during and after their lives. Estate planning is a multi-faceted exercise that requires the professional input of a number of specialised disciplines, such as lawyers, financial planners, insurance and assurance brokers, and tax experts. Estate planning is an ongoing process and there are certain recognised stages in a person's personal and business life that require you to reassess your estate plans, such as:

    The start of a relationship union or marriage

    The birth of a child or children

    The termination of a relationship or divorce
    A new business venture

    Retirement

    Disability

    A subsequent marriage

    Acquiring or selling a major asset

    A change in financial circumstances (inheritance and insolvency)

    Emigration and relocation

    Some important and well-known techniques a professional estate planner employs are:

    Antenuptial contracts

    Post-nuptial contacts

    Inter-spouse donations

    Family loans

    Income splitting mechanisms

    Inter Vivos Trusts

    Testamentary Trusts

    Disability and life cover

    Partnership agreement cover

    Key man agreement cover

    Offshore investments

    Last Will and testament

    Appointment of executors and trustees

    Inflation beating or inflation saving mechanisms

    What is an Inter Vivos Trust?

    An Inter Vivos Trust remains one of the most valuable mechanisms to protect and grow assets. Inter Vivos Trusts are often recommended for saving estate duty, but there are other reasons, such as:

    To protect your assets from creditors or relationship claim

    To provide continuity after death

    To protect your assets if a beneficiary is a minor or disabled

     

    However, an Inter Vivos Trust is not suitable for every individual or family and you need to consult a lawyer in this regard.

    A trust can be created to benefit grandchildren or a subsequent generation as the ultimate beneficiaries. This allows the generations in between to have limited access to the trust funds and avoids unnecessary estate duty. Obviously, factors such as the age of the next generation and their current financial standing and means will be important in the decision to create an Inter Vivos trust.

    Trusts are also not favoured by the authorities and the South African Revenue Services (SARS) and courts are increasingly scrutinising them. It is imperative that the form and governance of your trust is above reproach. Once again it is strongly recommended that you obtain expert legal advice in this regard.

    Why do I need a Will?

    Having a professional Will prepared is an unpleasant experience for many people, and one which is often delayed. But a Will is an important legal document that has a significant impact on how your family, or those dearest and dependant on you, live after you die. The task of drafting an appropriate, viable and valid Will should be entrusted to the care of an experienced practitioner because, unlike most other errors, this is one that cannot be remedied. A Will should be reviewed and updated from time to time. A change in your personal and financial circumstances should automatically trigger a review. Legislation or decisions made by the courts also impact on Wills and estate planning and it is therefore extremely important to obtain expert advice when drafting a Will.

    When drafting a Will the following is taken into consideration:

    Your unique personal and family circumstances

    Particular obligations you may have (eg divorce order and dependants)

    Tax efficiency

    The liquidity of your estate

    What are Testamentary Trusts?

    Testamentary Trusts are created in a person's Will and only come into effect on the death of that person. The Will then operates as the trust deed spelling out the terms of the trust. The terms would state for whom and under what circumstances beneficiaries are to benefit and when the trust is to terminate. There are various reasons and circumstances to consider when deciding whether to create a Testamentary Trust, some relating to family issues and others to monetary and tax considerations.

    Circumstances where a Testamentary Trust would make sense are:

     

    Minority or youthfulness

    At the time of the testators’ death, their beneficiaries are minors (under the age of 18), or are of age but lack the necessary maturity or experience to take full responsibility of their inheritance. This type of trust usually terminates when the individuals reach a certain age. Depending on the size of the inheritance, the individuals may have access to capital and the termination may be staggered.

    Disability

    A testator may wish to or has an obligation to provide for a beneficiary who has a physical or mental impediment which renders the beneficiary unable to manage his or her own affairs. A trust is then set up to provide either partially or fully for the individual's maintenance and other requirements for the duration of their life or the impediment.

    Section 4A - estate duty abatement

    Bequests made to surviving spouses are exempt from estate duty. It is therefore not uncommon for a testator to wish to leave a large portion or entire estate to their surviving spouse, but depending on the size of the estate and other factors, this may not be the most sensible approach. Although the estate of the first dying in such circumstances will not attract estate duty, the estate of the second dying could be subject to substantial estate duty. The Section 4A abatement (currently R3.5 million) can be used to overcome this, by leaving this amount to beneficiaries other than the surviving spouse. Financial constraints may dictate that the testator does not nominate other beneficiaries directly. A solution is often to place an amount equal to the Section 4A abatement in a trust for the discretionary benefit of the surviving spouse and, usually, any of the deceased's children. In this way the survivor has access to such funds for maintenance while the estate of the first dying enjoys the Section 4A abatement. The residue of the estate is then usually transferred to the surviving spouse.

    The viability and practical application of such a trust must be discussed thoroughly with the testator and estate planner to ensure envisaged results are achieved. In particular, the need for such a structure must be reviewed in light of recent amendments to the Estate Duty Act, which introduced the so-called "portable spousal deduction". This deduction essentially allows any unused abatement to be rolled over to the surviving spouse so that on the latter's death, the total abatement (currently R7 million) is available. While this would appear to reduce the need for a Testamentary Trust, the further benefits, ie the pegging of the assets in light of their future growth, as well as other considerations, may render the use of a Testamentary Trust imperative.

    What does Estate administration entail?

    The process of estate administration is burdensome and technical. In brief, it entails the following:

    Assessing the validity of the Will

    Interpreting the Will and explaining its application to the interested parties

    Identifying the assets in the estate, placing values on the assets and, where necessary, taking physical control

    Identifying and making contact with the creditors, and assessing the liabilities of the estate

    Determining the solvency and the liquidity levels of the estate.

    Realising assets

    Finalising and lodging the outstanding income tax returns with SARS

    Calculating the base costs of assets and the capital gains or losses in respect of the assets held by the deceased

    Calculating estate duty and claiming the relevant rebates

    Placing the debtors and creditors adverts in the local press and Government Gazette, arranging for the opening of the estate late banking account

    Complying with the Master of the High Court's requirements

    Communication with the beneficiaries

    Drafting the Liquidation and Distribution Account and arranging for the accounts to lie open for public inspection

    Settling the obligations of the estate and payment of creditors

    Transferring the remaining assets to the beneficiaries

    Transferring the immovable property at the Deed's office

    Drafting and preparing redistribution agreements

    Obtaining the Master's discharge on finalisation of the estate

    Louwrens Koen Attorneys can assist you in the drafting of a valid Will and the registration of Inter Vivos Trusts. Our team of dedicated professionals will guide you through this difficult process and be available to answer all your questions.

    In cases where an Inter Vivos Trust is created and assets are transferred to it, or a Testamentary Trust is created in a Will, we can help by:

    Advising on registering trusts and appointing trustees

    Advising on governance issues to ensure that the trustees are at all times acting in accordance with the relevant trust deed and the laws, which are onerous in respect of individuals acting in a fiduciary capacity

    Preparing all documents to comply with the Wills Act and Trust Property Control Act

    Administering the trust as a trustee or agent to ensure compliance with all formalities and regulations, attending on the tax returns of the trust, preparing the statements of the administration, the necessary trustee resolutions, attending trustee meetings and communicating with the relevant parties


Delivery of my original contract. Sending options.

  • How do we get our contract after registration?

    After delivery of the original antenuptial contract from the offices of the Registrar of Deeds the document can be collected from our offices. The document can also on request be couriered or sent via Postnet at an additional fee.


Our Services.

  • What other services can you assist us with?

    We can assist with any legal matter you might have. If an service is not within our legal ambit we will endeavor to refer you to appropriate professionals. Click here for a list of our services.


Your Options

  • What matrimonial regime is best for us?

    Keep in mind that everyone have unique circumstances. Careful consideration should be given before deciding on the most suitable option. The laws that govern marriage and matrimonial property – the belongings of the spouses that form part of the marriage – are numerous and complex. That being said, our courts are very protective of the sanctity of marriage and the rights of the spouses. With international travel and communication becoming easier, and globalisation resulting in many cross-border relationships, questions about how marriages will operate in multinational settings from a practical and legal perspective are increasingly common.

    This article explains the different types of marriages available in South Africa, and the formalities for concluding a legal marriage.

    What types of marriages are there in South Africa?

    In South Africa a person can get married in terms of civil law or customary law, or in terms of a culture or religion, such as Hindu or Islamic law. This is provided that they follow the provisions of the Marriage Act when getting married and comply with the same requirements for a civil marriage during their religious or cultural ceremony. Even same-sex partners can get married by concluding a civil union. There are special requirements that the spouses of each type of marriage must comply with in order to render their marriage valid, and the requirements differ from one type of marriage to the next. It is very important to speak to your religious officer or marriage officer to ensure that your marriage will satisfy all of the legal requirements for such recognition.

    Which laws apply to marriages concluded in South Africa?

    When speaking of civil marriages and determining how you and your partner are going to get married, the first question that needs to be asked is which legal system applies to your marriage.

    In terms of the common law in South Africa, the matrimonial property regime of a marriage is determined according to the law applicable in the husband’s country of domicile at the time of the marriage, as opposed to the wife’s country of domicile.

    Domicile is sometimes a difficult concept to define, but the generally accepted legal definition is “the place which a person deems to be their permanent residence; or a place to which, even if he or she were temporarily absent, they intend to return.”

    Thus, if you are a South African woman marrying a man from the United Kingdom who is temporarily in South Africa and intends on returning there in the near future, the default position is that the laws of the UK will apply to your marriage. If you are both South Africans residing in this country, then the legal systems of South Africa will apply to your marriage.

    What is unclear, however, and yet to be decided by our courts, is what system will apply in a same-sex civil union. In this case how is it determined who the “husband” will be? This is a very serious issue which needs to be addressed on a Constitutional level.

     The Matrimonial Property Act 88 of 1984

    If after determining that your husband to be is domiciled in South Africa, then it is important for you to know that the Act that will be governing the assets of your estate going forward will be the Matrimonial Property Act 88 of 1984 (the Act). This Act will have a direct effect on your assets for the duration of your marriage, and at the possible termination, through either death or divorce. It is, therefore, important that you consider it carefully, and for this reason I have briefly set out below the main points contained in the Act with which you need to acquaint yourself.

    It is important to note that the South African matrimonial property regime was significantly amended in 1984, with the advent of the Matrimonial Property Act. Prior to this date, any marriage entered into without an ante-nuptial contract, resulted in the parties being married OUT of community of property. This system was amended in 1984, with the intention of protecting the spouse who generally, during those times, gave up her career to stay at home and raise children. This amendment had the effect that Marriages entered into without an ante-nuptial contract, resulted in the parties being married IN community of property.

    Options Pertaining to Marital Regimes in South Africa as According to the Act

    If you are getting married to a South African as explained above, then you essentially have 2 choices as to the marital regimes applicable to your marriage. They are:

    1) A marriage in community of property; or

    2) A marriage out of community of property.

     If, however, you elect to be married out of community of property, which you must remember is not the default position, you require the execution of an ante-nuptial contract, in which case you have a further 2 choices:

    1) Out of Community of Property with the application of the Accrual System; or

    2) Out of Community of Property without the application of the Accrual System

    How to decide which system is best for you

    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. For this reason, the various regimes and their respective advantages and disadvantages will now be dealt with.

    i) Marriage In Community of Property

    How does it work?

    In terms of this system, both spouses share equally in the assets and liabilities that either of them own, owe or acquire before or during the marriage.

    Spouses will have equal power of administration and both can act independently of the other, although there are certain exceptions. Written consent of both is, however, required for certain important transactions such as those relating to fixed property, suretyship’s and credit agreements, and informal consent of both is required for transactions such as the selling of goods of the joint household, such as furniture or jewellery. However, consent is not required for transactions relating to the trade, business or profession of the spouses.

    Advantages

    This system rests on the sound principle namely that marriage is a partnership and as such can be conducive to a harmonious marital relationship. It also promotes both legal and economic equality of the spouses. During the marriage and on its dissolution both partners are entitled to a half share in the joint estate and each one has equal powers of administration.

    Disadvantages

    The biggest disadvantage of a marriage in community of property is that insolvency of one of the spouses affects the total communal property, and thus the solvency of the other spouse. Where a risk of insolvency exists, it is therefore not a desired system. Further, the system of equal powers could, in cases where the temperament of one or both marriage partners is not collaborative, lead to conflict in the marriage.

    ii) Marriage Out of Community of Property Without The Accrual System

    How does it work?

    In this type of system, each spouse comes into the marriage with their own assets and debts. 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.

    Advantages

    Each spouse retains sole control for their own assets and liabilities. Consent of one spouse is not required by the other so as to allow each spouse to enter into transactions, where each spouse is free to build up his or her own estate without the fear of it being attached by virtue of the other spouses insolvency, or being made liable to a possible division upon divorce.

    Disadvantages

    In this system, if one spouse gives up their career to care for a the household or children, they will be severely prejudiced by not benifitting from the estate that they essentially helped to build by enabling the bread winner to build up their wealth.

    This system is therefore not recommended for couples where one spouse intends giving up work or where the couple’s earning capacities are hugely disparate.

    iii) Marriage Out of Community of Property With the Accrual System

    How Does it Work

    This system was developed by the legislature especially to ensure that some protection is still offered to those parties who elect to marry out of community of property, especially in those situations where, as referred to above, one of the parties remains at home, giving up a career to look after a household or children.

    It works in much the same way as a marriage out of community of property without accrual except that upon dissolution of the marriage, either by death or divorce, the estates of the parties will be divided differently in accordance with the respective assets and financial position of the parties.

    The way in which this division takes place is that upon dissolution of the marriage, by death or divorce, the difference between the respective values of the assets of each spouse obtained during the marriage – the accrual – will be shared equally between the spouses. This means that the spouse whose estate has shown a larger growth will pay to the other spouse half of the difference in their respective accruals. 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.

    Advantages

    Out of all the systems, it is generally accepted that the accrual system is a modern, equitable system and may be conducive to a 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 also offers protection during the existence of the marriage against, for example, insolvency of one of the spouses. Further, at the dissolution of the marriage each spouse has a right to share in the growth of the estate, even if they did not financially contribute to it.

    Disadvantages

    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 spouse may have little credit worthiness during the subsistence of the marriage if his or her estate is small.

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

    Now that you have a better understanding of the types of systems that are available to you, it is important for you to know how to go about deciding how the regime you choose to apply is to be instituted. In this regard, it is important to remind the reader that should you marry without entering into any form of ante-nuptial contract, you will automatically be married in community of property and you will only be able to amend this by applying to the High Court.

    If you enter into an ante-nuptial contract but do not expressly exclude the accrual system, then this will automatically apply to your marriage. Should you wish to include the accrual system, but alter it in some way, you may do this by, for instance, including a provision that the eventual division of the accrual will not be on a 50/50 basis, but in accordance with another ratio.

    It is important to note that you as spouses may include any provision that you wish to include in your ante-nuptial contract, provided that it is not contrary to the law.

    Conclusion

    In order to avoid any legal and practical difficulties arising from not selecting a matrimonial property regime from the outset, it is highly advisable that you contact a marriage officer, attorney or notary for more information on this topic. This should be done well in advance of getting married, to ensure that you have time to investigate and make suitable arrangements to comply with the legal requirements that apply to your intended marriage.

    Click Here for more information.

    Which matrimonial regime should we choose

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