ANC Marriage Contract
What is an ANC Marriage Contract?
An ANC marriage, also known as a marriage out of community of property, is a type of marriage in which the spouses enter into an Antenuptial Contract (ANC) before getting married. This contract outlines the terms and conditions for the exclusion of community of property, meaning that each spouse retains ownership of their separate property and has the freedom to manage it as they wish. In an ANC marriage, the spouses do not share a joint estate, and their assets are not automatically merged into a single community of property. Instead, each spouse retains control over their own property and is responsible for managing it independently. If one spouse becomes insolvent, their partner's property is typically protected from their creditors. In South Africa, an ANC must be registered at a Governmental Deeds Office within three months of being signed in order to be legally binding.
What is ANC with accrual?
In South Africa, an ANC with accrual is a type of Antenuptial Contract (ANC) that includes provisions for the "accrual" or sharing of assets and liabilities acquired during the marriage. This means that, in addition to the exclusion of community of property that is typically included in an ANC, the contract also specifies how the spouses' assets will be divided if the marriage ends in divorce or if one spouse dies.
Under an ANC with accrual, the spouses may choose to divide their assets and liabilities in one of two ways: either by equal division (also known as "equal division of the accrual") or by a system known as the "determinable division of the accrual." In the equal division system, the spouses' assets and liabilities are divided equally between them, regardless of who acquired them or who was responsible for them. In the determinable division system, the spouses' assets and liabilities are divided according to a formula that takes into account factors such as the length of the marriage, the spouses' contributions to the marriage, and any special needs or circumstances.
It's important to note that an ANC with accrual is not the same as a marriage in community of property, in which the spouses' assets and liabilities are automatically merged into a single community of property. Instead, an ANC with accrual allows the spouses to retain separate ownership of their property while also providing for the division of any assets or liabilities acquired during the marriage. Like all ANCs, an ANC with accrual must be registered at a Governmental Deeds Office within three months of being signed in order to be legally binding.
What is ANC without accrual?
An ANC without accrual, also known as an ANC out of community of property without the accrual system, is a type of Antenuptial Contract (ANC) that excludes the sharing of assets and liabilities acquired during the marriage. This means that, under an ANC without accrual, the spouses do not have to divide their assets or liabilities if the marriage ends in divorce or if one spouse dies. Instead, each spouse retains ownership of their separate property and is responsible for managing it independently.
In an ANC without accrual, the spouses are said to be "out of community of property," meaning that their assets and liabilities are not automatically merged into a single community of property as they would be in a marriage in community of property. This type of ANC is often chosen by couples who want to maintain their financial independence and keep their assets separate from those of their spouse.
It's important to note that an ANC without accrual does not provide for the division of assets or liabilities acquired during the marriage. If the marriage ends in divorce or if one spouse dies, the spouses will not be required to divide their assets or liabilities according to any formula or system. However, an ANC without accrual may still include provisions for maintenance (also known as alimony or spousal support) or the division of certain specific assets or liabilities. Like all ANCs, an ANC without accrual must be registered at a Governmental Deeds Office within three months of being signed in order to be legally binding.
Why would someone choose an ANC?
There are several reasons why someone might choose an ANC. For example, an ANC may be attractive to couples who want to maintain their financial independence and keep their assets separate from those of their spouse. An ANC may also be a good option for couples who have children from previous relationships and want to ensure that their assets are passed down to their children rather than being merged into a joint estate.
What are the different types of ANC?
There are two main types of ANC: an ANC with accrual and an ANC without accrual. An ANC with accrual includes provisions for the sharing of assets and liabilities acquired during the marriage, while an ANC without accrual excludes the sharing of these assets and liabilities.
How is an ANC different from a marriage in community of property?
In a marriage in community of property, the spouses' assets and liabilities are automatically merged into a single community of property. This means that the spouses share ownership of all of their assets and are jointly responsible for all of their debts. In an ANC, the spouses do not share a joint estate and are not automatically responsible for each other's debts. Instead, they retain separate ownership of their property and are responsible for managing it independently.
Can an ANC be amended or cancelled?
An ANC can be amended or cancelled in certain circumstances, such as if the parties agree to a new contract or if one party obtains a court order. However, any changes to an ANC must be made in writing and registered at a Governmental Deeds Office in order to be legally binding.
How do I register an ANC?
In order to register an ANC, the parties must sign the contract in the presence of a commissioner of oaths or a notary public. The signed contract must then be registered at a Governmental Deeds Office within three months of being signed.
Is an ANC required by law in South Africa?
No, an ANC is not required by law in South Africa. However, if the parties do not enter into an ANC and do not opt for a marriage in community of property, they will be considered to be married out of community of property with the accrual system by default.
Can an ANC be entered into after the marriage has taken place?
No, an ANC must be entered into before the marriage takes place. If the parties want to change their marriage regime after they are married, they must do so through a process known as "antenuptial conversion," which involves obtaining a court order and registering the new contract at a Governmental Deeds Office.
Does an ANC apply to same-sex marriages?
Yes, an ANC can be entered into by any two people who are planning to get married, regardless of their gender or sexual orientation.
Can an ANC be enforced in other countries?
It depends on the laws of the country in question. Some countries may recognize and enforce an ANC that was entered into in South Africa, while others may not. It's a good idea to consult with a local lawyer if you have questions about the enforceability of an ANC in a specific country.
Advantages and disadvantages of an ANC
Advantages:
- Maintains financial independence: An ANC allows each spouse to retain ownership of their separate property and to manage it independently, which can be attractive to couples who want to maintain their financial independence.
- Protects assets: An ANC can protect one spouse's assets from the other's creditors in the event that one spouse becomes insolvent.
- Customization: An ANC can be tailored to the specific needs and circumstances of the couple, allowing them to include provisions that reflect their individual goals and priorities.
- Simplifies property division: In the event of divorce or the death of a spouse, an ANC can simplify the process of dividing property by clearly specifying how assets and liabilities will be divided.
Disadvantages:
- Complexity: An ANC can be complex to draft and requires the services of a lawyer, which can be costly.
- Limited protection: An ANC does not provide the same level of protection for assets as a marriage in community of property. For example, an ANC does not provide for the automatic sharing of assets in the event of divorce or the death of a spouse.
- Inflexibility: An ANC is a legally binding agreement that can be difficult to modify once it is in place. This can be problematic if the circumstances of the couple change over time.
- Potential for conflict: An ANC can create potential for conflict between the spouses if one spouse feels that the terms of the contract are unfair or do not reflect their contributions to the marriage.
It's important to note that an ANC is not right for everyone. Couples should carefully consider their options and seek legal advice before deciding whether an ANC is the best choice for their situation.
