Read this article several times over.
Read it some more.
Do some of your own research on the web.
Revisit this page.
If you choose to purchase this product, please print a copy of these explanatory notes to assist with conclusion of the ANC.
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 ALSO EXCLUDE accrual.
- For marriages that are OUT of COMMUNITY of property THAT INCLUDE accrual (with PRIVATE inception values), please click here.
- For marriages that are in community of property, please click here.
- For marriages that are OUT of COMMUNITY of property THAT INCLUDE accrual (with PUBLIC inception values), please click here.
MARRIAGES OUT OF COMMUNITY OF PROPERTY THAT ALSO EXCLUDE ACCRUAL
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. What does all of this mean? Simply put: the assets of the husband and the wife are kept separate of one another while married to one another. At the end of the marriage neither the husband, nor the wife, is entitled to share in any growth of the other party’s estate. If both spouses want to share in the growth of either spouse’s estate at the end of the marriage, then they need to enter into an ANC THAT IS OUT OF COMMUNITY OF PROPERTY WITH ACCRUAL, or get married in community of property.
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 public. SITL Legal sub-contracts all its notarial work to a notary public based in Pretoria and is someone the principal of SITL Legal has worked with since 2010.
Once your ANC has been notarised, the notary public 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, HOWEVER your ANC IS VALID once it has been notarised by the notary public.
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 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.
ANC out of community of property and without accrual: SITL Legal
sub-contracted notary, special power of attorney
This precedent has been tailored for those of you who may wish to use the notary in Pretoria to whom SITL Legal sub-contracts notarial work. This precedent together with the applicable power of attorney is R200, 00 (two hundred Rand). The notary that we use charges R400, 00 to notarise the 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 R860, 00 (eight hundred and sixty Rand).
You will need to make the latter two payments (R660 in total) to the notary 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);
- 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.