Marriage and Property Law

Did you know that a property contract agreement pertaining to property law can be overruled by agreements made in the marriage contract?This can have far-reaching consequences if couples are unaware of the outcome regarding the sale of a property when married or after a divorce. It is important that couples realise, before making their vows, that doing so can change the outcome of a property agreement.

In Community of Property

In Community of Property is an easy law to understand. It basically means that any assets that either one of the spouses owns during or before the marriage vows are made belongs to both spouses equally. This means that in the event of divorce the sum of both assets will be divided as equally as possible, while during the event of death, the living spouse will have ownership of all the marriage assets. This agreement is the most repudiating with regards to property law and the individual ownership before marriage.

Anti-nuptial Contracts and Property

An anti-nuptial contract is very different from the Community of Property rule. In the case of anti-nuptial agreements, spouses can agree to accrual or not. Accrual means that any assets made during the marriage period will be shared equally in the event of divorce. However, any property or assets owned by any one of the spouses before marriage strictly stays in that individual’s name unless agreed on the anti-nuptial contract otherwise.

Without accrual means that all property and assets, whether accumulated during the time of marriage or not, is owned by the individual in whose name the assets are in. Without accrual can be problematic in the event that the other spouse helps to pay for a particular asset, and how a particular asset is shared needs to be expressed within the contract.

With regards to property, couples must think long and hard as to their choice in marital contract. As with any agreement, we cannot predict the future, and agreements need to be made now to safeguard individuals in the case of divorce and/or death. A hasty decision may supercede the common property law in any event.

2019-01-24T11:32:35+00:00January 24th, 2019|Commercial Law|0 Comments
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