Please make absolutely certain you choose the correct product for purchase. We have 2 ante-nuptial contracts that include accrual for sale:
- one is where the value of the spouses’ assets are able to be seen by all and sundry; and
- a second option for those who wish for the values assigned to their assets to remain private.
The above is discussed in greater detail below.
Read this article several times over.
Read it some more.
Do some of your own research on the web.
Revisit this page.
Marriage is a serious step and we want you to be absolutely certain of the marital regime you choose to be married under. This is why SITL Legal INSISTS that you be as thorough and as pedantic as possible in doing your research.
- This article regulates marriages OUT OF community of property THAT INCLUDE accrual, where asset values are PRIVATE.
- For marriages that are in community of property, please click here.
- For marriages that are OUT of COMMUNITY of property THAT EXCLUDE accrual, please click here.
- This article regulates marriages OUT OF community of property THAT INCLUDE accrual, where asset values are PUBLIC, please click here.
- For marriages OUT OF community of property THAT INCLUDE accrual, where asset values are PRIVATE, please click here.
MARRIAGES OUT OF COMMUNITY OF PROPERTY THAT INCLUDE ACCRUAL, WHERE INCEPTION VALUES ARE PRIVATE
Firstly, What is Accrual?
Accrual applies to all marriages that are OUT OF community of property EXCEPT where the parties have explicitly stated in their ante-nuptial contract that accrual is EXCLUDED. The ANC for sale here is out of community of property and ALSO excludes accrual.
Accrual simply means that when a marriage ends (whether this happens due to divorce or death), the net increase in the spouses’ estates after the marriage is shared.
Each party to the ANC will state a commencement value for each of their assets. When the marriage ends by death or divorce, the assets are re-valued and the spouse who has a larger growth in his/her estate will face a claim for an amount that is 50% of the difference between the two accruals. The commencement values are adjusted for inflation and when valuing the estates at the end of the marriage, certain items like inheritance are excluded; what will also be excluded from this calculation is any asset that the parties have explicitly stated in the ANC should be excluded.
This ante-nuptial contract (“ANC“) has been drawn up to EXCLUDE community of property but INCLUDES accrual. The assets of the husband and the wife are kept separate of one another for the duration of their marriage. At the end of the marriage both parties are entitled to 50% of the other’s spouse’s estate to the extent that it has grown. The benefit of this marital regime combines being married in community of property, but with the benefits of being married out of community of property.
Let us explain. Let’s say both spouses are married with an ANC like this one that INCLUDES accrual and let’s say one of the spouses runs a business that goes insolvent. The benefit of this marital regime is that the assets of the non-defaulting spouse are protected from attachment. If the parties were married in community of property, then the non-defaulting spouse’s assets would NOT be safe from attachment.
Where this marital regime provides similar benefits to being married in community of property is that each spouse is entitled to 50% of the growth of the other spouse’s estate (assets) at the dissolution of the marriage.
If you want to be married with an ANC that is OUT OF COMMUNITY OF PROPERTY AND EXCLUDES ACCRUAL, then this is NOT the correct agreement for you, and you must use the agreement that is available here.
To be legally binding, ante-nuptial contracts must be notarised by a notary BEFORE THE WEDDING.
They must also be filed in a Deeds Office within 3 months of the notarisation date (which means the filing date can be after the wedding)
WE REITERATE: NOTARISATION OF THE ANC MUST HAPPEN BEFORE THE WEDDING
PLEASE NOTE: ANY notary can lodge ANY ANC in ANY deed’s office; unlike the registering of mortgage bonds etc. which have to take place in a specific Deed’s Office, such is NOT the case with ante-nuptials. This means you can live in Durban and an attorney living in Pretoria can attend to notarising and filing your ANC.
Your ANC has to be notarised by a notary private. SITL Legal sub-contracts all its notarial work to a notary private based in Pretoria and is someone the principal of SITL Legal has worked with since 2010.
Once your ANC has been notarised, the notary private must file it in a deed’s office within 3 months from the date of notarisation. It will take slightly longer than 3 months for the deed’s office to complete its process of registration and for the notary to ultimately return the registered ANC to you. Please note that registration of a notarised ANC in a deeds office is a formality that normally occurs after the marriage, HOWEVERyour ANC IS VALID once it has been notarised by the notary private.
As this product makes use of the SITL Legal notary to whom SITL Legal
sub-contracts its notarial work), we have included a pre-filled limited power of attorney (see more on this item below) that must be completed by both future spouses and signed in the presence of two witnesses that enables the ANC to be signed before the notary in question even if the parties are not physically present to sign such. This means you can live in Durban, your future spouse in Cape Town and the notary elsewhere in South Africa (he lives in Pretoria actually). It is again part of SITL Legal’s offering to you to make the law cheap, affordable and accessible by all.
(ANC’s have to be notarised in the presence of the notary. HOWEVER, the limited power of attorney that you will complete gives the notary’s personal assistant the power to sign your marriage contract on your behalf before the notary. Please note that this is a LIMITED power of attorney and is only limited to authorising said person to sign the ANC on behalf of both parties. This mechanism enables you to make use of a very
cost-effective service to have your ANC notarised by a notary who is not necessarily resident where you are.)
Our ANCS are not mere tick-box exercises. We “force” you to fully understand what it is you’re signing. We want your buy-in. Your marriage contract is as important as your marriage and your full engagement is necessary.
You will be provided with draft documents that you need to peruse and sign to indicate you have gone through each provision and that you understand them. Please make certain all instructions are followed thoroughly and the special power of attorney is correctly completed.
Please ensure that you do not leave your marriage contract until the last minute. Legally you cannot vary your marital regime once you are married EXCEPT with the sanction of the High Court. This is a costly exercise and not only does it involve the High Court’s discretion, but you also need to obtain the approval of your creditors. Be vigilant in ensuring that you act expeditiously in having your ANC concluded before you marry. Again, read the notes above, which detail at which juncture (point in time) your ANC is valid from.
NOTE FURTHER: As ANCs are filed in Deeds’ Offices, they are PRIVATE documents that are capable of being accessed by all and sundry! This means that inquisitive people (whether it’s a family member, an office gossip, the postman, whomever) can easily access these details if they wish to know what your net worth is. Of course some people artificially declare the inception value of their estates to be zero. By doing this, on dissolution of the marriage, the accrual is greater than if an actual inception value had been used.
Some spouses may wish to include inception values of their estates as this means that- if the marriage dissolves- the accrual will be lesser as the inception values will be deducted from any calculations. Also some spouses MAY NOT WANT the inquisitives of the world knowing what their net worth is! So how to they plausibly include the inception value of their estate (their net worth) in the ANC, but ensure that their privacy is protected? Well, they can make use of section 6 of the Matrimonial Property Act; a statement is prepared in terms of the latter section and the actual values are contained in the ANC that your notary keeps and your copy.
The product for sale below is an ANC that excludes community of property, includes accrual, and is one where the asset values of the spouses are PRIVATE.
ANC – with accrual
SITL Legal’s sub-contracted notary, limited power of attorney and PRIVATE inception value
You would only use this agreement where:
- you use the notary to whom SITL Legal sub-contracts work to (located in Pretoria); don’t worry if you live in another part of SA; you will use the limited special power of attorney to give the notary’s assistant the power to sign in front of the notary for you and your spouse; and
- the inception value of the estate is DECLARED, BUT PRIVATE and section 6 of the Matrimonial Property Act is being relied on (please see our note above on privacy and section 6 of the Matrimonial Property Act).
This ANC – with accrual (SITL Legal’s sub-contracted notary, limited power of attorney and PRIVATE inception value) includes the pre-filled power of attorney, the statement in terms of section 6 of the Matrimonial Property Act, and is R300, 00 (three hundred Rand); it may be purchased here.
The notary that we use charges R440, 00 to notarise this ANC and the Deed’s Office fee and sundries is R260, (note that this is BOTH the Deed’s Office fee AND sundries). All in all your ANC will cost you R1000, 00 (one thousand Rand). You will need to make the latter two payments to the attorney in question, whose details you will receive on payment together with your ANC and pre-filled limited power of attorney. You will also receive detailed instructions in terms of how to proceed.
Once you have paid SITL Legal and once you receive your documents (Guide to the ANC, Guide to the Limited Power of Attorney, a clean copy of the ANC and a clean copy of the limited power of attorney), then you must:
- please print a copy of these explanatory notes for you and your future spouse;
- read the guide encapsulating the draft ANC;
- sign and complete the above draft acknowledging each relevant clause;
- read the guide encapsulating the limited power of attorney;
- sign and complete the above draft acknowledging each relevant clause;
- initial each page of the clean copy of the ANC;
- sign the limited power of attorney (please see above regarding the signing of such at a police station);
- scan and email, or fax, all the above to the notary, whose details are in the guide;
- post or courier the originals to the SITL Legal sub-contracted notary.
It is imperative that the limited power of attorney is correctly executed and that the original is received by the notary to permit the filing of such in a deed’s office. NOTE: no filing of the ANC can happen UNTIL the original limited power of attorney has been correctly concluded and an original provided to the notary.
The notary will also provide you with the necessary certificate to be given to the marriage officer.