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What is the significance of an antenuptial contract ?
Our law differentiates between three main matrimonial property dispensations:
MARRIAGES IN COMMUNITY OF PROPERTY
At the time of the conclusion of the marriage one joint estate comes into existence . This estate consists of all the assets and liabilities that both spouses had prior to and after entering into the marriage. The joint estate is managed through a system of equal control.
This means that the two spouses have equal powers of management over the joint estate and, excluding certain statutory exceptions, can deal individually with the matrimonial property as they see fit.
The advantage of this system, which also explains its historical popularity is that the spouses share in each other's financial prosperity — also in those cases where one spouse (often the wife) contributes over a long period but in an indirect manner to the growth of the joint estate.
The disadvantage of the system is of course that the spouses run the risk of also sharing in each other's financial misfortune and there is very little protection against one spouse irresponsibly wasting the assets of the joint estate. A further disadvantage is that the system of equal control inevitably
MARRIAGES OUT OF COMMUNITY OF PROPERTY WITHOUT ACCRUAL
It is possible for prospective spouses following the prescribed procedure to exclude both community of property and the accrual system from their marriage. In such a case the patrimonial position of the parties after the conclusion of the marriage would be similar to their position prior to the marriage. Both spouses retain their own separate estates consisting of all the assets and liabilities they have obtained before and after entering into the marriage.
Contrary to the position of spouses married in community of property, each spouse married out of community of property has full capacity to act regarding his or her estate. Such a spouse can conclude any juristic act concerning his or her own estate without the consent or even knowledge of the other spouse. Another advantage is that these spouses are generally speaking not accountable for each other's debts and accordingly do not bear the risk of sharing each other's financial losses or recklessness.
However, the downside is that they do not share in each other's profit or financial gain. Where one spouse has been economically inactive for a long period, possibly because of family or household duties, he or she (traditionally the wife) may be seriously prejudiced at the time of the termination of the marriage despite the indirect contribution that he or she has made towards the growth of the other spouse's estate.
MARRIAGES OUT OF COMMUNITY OF PROPERTY WITH ACCRUAL
Since the Matrimonial Property Act 88 of 1984 came into operation, all marriages out of community of property automatically include the accrual system unless this system is explicitly excluded by the parties. Stante matrimonio, the normal consequences of marriage out of community, applies without differentiation to both marriages with and without the accrual system. There are in other words two separate estates that are administered independently and the spouses are not liable to pay each other's debts. Only at the time of the dissolution of the marriage (irrespective of whether it is terminated through death or divorce) does the accrual system come into operation.
The disadvantage of a marriage with complete separation, namely that one spouse cannot share in the accumulation of the other spouse's estate upon the dissolution of the marriage, is negated by the operation of the accrual system. Calculated according to the formula set out in the Matrimonial Property Act, the spouse whose estate has shown the smaller accrual can share in the growth of the other spouse's estate.
This position is generally regarded as more equitable than that of a total separation of property which excludes the accrual system.