pre-nup OCOC with accrual - DIY?

berghie

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Getting married next year and want to get married out of community of property, with accrual.
Our asset base is small, so no worries about combined assets taken into the marriage, eg. one shared old car and cash savings of a few years (+-200k).

Can I go the with accrual route, and still protect my wife-to-be from future debt if I start a business down the road and it goes belly-up?
Also, is it possible to do this pre-nup business DIY? I found a template referring to the 1984 Matrimonial Property Act and it seems straight-forward. Where does one go to have the pre-nup "notarized"?
https://divorceattorneys.wordpress.com/tag/sample-of-an-antenuptual-agreement-with-accrual/
As I understand, the marriage officer will register the pre-nup together with the marriage, so long as the pre-nup is valid properly signed.
 

The_MAC

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Notarising can only be done by a Notary - "A notary is a person licensed by the government to perform acts in legal affairs, in particular witnessing signatures on documents"

The lawyer we used to write up our ANC was also a Notary.

I suspect that getting it notarised will be almost the same price as getting the whole thing setup and notarised by said Notary.
 

Cube3

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You should also consider things like your pension / RA / shares etc. If its not specifically stated in the prenup, then its a free for all.

As much as you love each other and you would never do this or she would never do that. Plan for how bad it could get if you get divorced. There is no amicable in divorce, even if you think there would be.
 

skinndeep

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Go to a lawyer for this rather. It costs like R1000. Did ours 2 months ago.
 

bokka1

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Only notaries can do it and not all attorneys are notaries.

The accrual only comes into play when the marriage gets terminated.

During the course of the marriage there is no difference between with the accrual and without it. You are married out of community of property.
 

IzZzy

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Only notaries can do it and not all attorneys are notaries.

The accrual only comes into play when the marriage gets terminated.

During the course of the marriage there is no difference between with the accrual and without it. You are married out of community of property.
This.
 

berghie

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Only notaries can do it and not all attorneys are notaries.

The accrual only comes into play when the marriage gets terminated.

During the course of the marriage there is no difference between with the accrual and without it. You are married out of community of property.
"With accrual" sounded like debts incurred after marriage become shared, but if there is an option to limit the accrual to income (net of living expenses?), that is rad.

Will have to lawyer up :erm:
 

bokka1

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No, debts don't become shared with the accrual. That only happens when you are married in community of property.

The accrual system is an agreement between you and your future partner to determine how your assets are divided at the termination of the marriage.
 

berghie

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No, debts don't become shared with the accrual. That only happens when you are married in community of property.

The accrual system is an agreement between you and your future partner to determine how your assets are divided at the termination of the marriage.
The thing that confused me is that the accrual in this instance only applies to assets that increase, and completely excludes liabilities that might occur after marrying. Otherwise it would be the exactly the same as marrying in community of property.

Great info, much appreciations.
 

Speedster

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The thing that confused me is that the accrual in this instance only applies to assets that increase, and completely excludes liabilities that might occur after marrying. Otherwise it would be the exactly the same as marrying in community of property.

Great info, much appreciations.
OCP with accrual basically means that while you're married, you're married OCP. However, upon termination of the marriage (i.e., death or divorce) it is treated as if you were married in community of property (i.e. assets etc get split 50/50). It's sort of a best of both.

Interesting question regarding debts, I guess they'll be split 50/50 too. Maybe a legal guru can confirm?

Also remember that it's possible to exclude certain assets which then won't be included in the accrual calculation upon termination.
 

bokka1

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OCP with accrual basically means that while you're married, you're married OCP. However, upon termination of the marriage (i.e., death or divorce) it is treated as if you were married in community of property (i.e. assets etc get split 50/50). It's sort of a best of both.

Interesting question regarding debts, I guess they'll be split 50/50 too. Maybe a legal guru can confirm?

Also remember that it's possible to exclude certain assets which then won't be included in the accrual calculation upon termination.
Ja, you can exclude assets from the accrual.

Debts are just deducted from the accrual.

Edit: It all depends on the starting values of each party.
 
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Unpopular Prawn

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Confirm all of the above. Debts whilst you are married are shared. Only things exempt from this are inheritance and winnings. Everything else is fair game.
 

berghie

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Okes are shooting wildly (blindly?!) from the hip :whistling:

Below is a link to the relevant law. Marrying OCOP, whether with accrual or without, protects your spouse from sharing your potential debts. This is because the accrual is specifically defined as the amount by which your estate's net value at dissolution (divorce/death) exceeds that at commencement (wedding).

https://en.wikisource.org/wiki/Matrimonial_Property_Act,_1984
http://www.lssa.org.za/upload/documents/Marriage%20_%20The%20Legal%20Aspects.pdf

Chapter I, paragraphs 4 + 6:
4.
(1)
(a) The accrual of the estate of a spouse is the amount by which the net value of his estate at the dissolution of his marriage exceeds the net value of his estate at the commencement of that marriage.
(b) In the determination of the accrual of the estate of a spouse—
(i) any amount which accrued to that estate by way of damages, other than damages for patrimonial loss, is left out of account
(ii) an asset which has been excluded from the accrual system in terms of the antenuptial contract of the spouses, as well as any other asset which he acquired by virtue of his possession or former possession of the first-mentioned asset, is not taken into account as part of that estate at the commencement or the dissolution of his marriage;
(iii) the net value of that estate at the commencement of his marriage is calculated with due allowance for any difference which may exist in the value of money at the commencement and dissolution of his marriage, and for that purpose the weighted average of the consumer price index as published from time to time in the Gazette serves as prima facie proof of any change in the value of money.


6.
(1) Where a party to an intended marriage does not for the purpose of proof of the net value of his estate at the commencement of his marriage declare that value in the antenuptial contract concerned, he may for such purpose declare that value before the marriage is entered into or within six months thereafter in a statement, which shall be signed by the other party, and cause the statement to be attested by a notary and filed with the copy of the antenuptial contract of the parties in the protocol of the notary before whom the antenuptial contract was executed.
(2) A notary attesting such a statement shall furnish the parties with a certified copy thereof on which he shall certify that the original is kept in his protocol together with the copy of the antenuptial contract of the parties or, if he is not the notary before whom the antenuptial contract was executed, he shall send the original statement by registered post to the notary in whose protocol the antenuptial contract is kept, or to the custodian of his protocol, as the case may be, and the last-mentioned notary or that custodian shall keep the original statement together with the copy of the antenuptial contract of the parties in his protocol.
(3) An antenuptial contract contemplated in subsection (1) or a certified copy thereof, or a statement signed and attested in terms of subsection (1) or a certified copy thereof contemplated in subsection (2), serves as prima facie proof of the net value of the estate of the spouse concerned at the commencement of his marriage.
(4) The net value of the estate of a spouse at the commencement of his marriage is deemed to be nil if—
(a) the liabilities of that spouse exceed his assets at such commencement;
(b) that value was not declared in his antenuptial contract or in a statement in terms of subsection (1) and the contrary is not proved.
 
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bokka1

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Okes are shooting wildly (blindly?!) from the hip :whistling:

Below is a link to the relevant law. Marrying OCOP, whether with accrual or without, protects your spouse from sharing your potential debts. This is because the accrual is specifically defined as the amount by which your estate's net value at dissolution (divorce/death) exceeds that at commencement (wedding).

https://en.wikisource.org/wiki/Matrimonial_Property_Act,_1984
http://www.lssa.org.za/upload/documents/Marriage%20_%20The%20Legal%20Aspects.pdf

Chapter I, paragraphs 4 + 6:
4.
(1)
(a) The accrual of the estate of a spouse is the amount by which the net value of his estate at the dissolution of his marriage exceeds the net value of his estate at the commencement of that marriage.
(b) In the determination of the accrual of the estate of a spouse—
(i) any amount which accrued to that estate by way of damages, other than damages for patrimonial loss, is left out of account
(ii) an asset which has been excluded from the accrual system in terms of the antenuptial contract of the spouses, as well as any other asset which he acquired by virtue of his possession or former possession of the first-mentioned asset, is not taken into account as part of that estate at the commencement or the dissolution of his marriage;
(iii) the net value of that estate at the commencement of his marriage is calculated with due allowance for any difference which may exist in the value of money at the commencement and dissolution of his marriage, and for that purpose the weighted average of the consumer price index as published from time to time in the Gazette serves as prima facie proof of any change in the value of money.


6.
(1) Where a party to an intended marriage does not for the purpose of proof of the net value of his estate at the commencement of his marriage declare that value in the antenuptial contract concerned, he may for such purpose declare that value before the marriage is entered into or within six months thereafter in a statement, which shall be signed by the other party, and cause the statement to be attested by a notary and filed with the copy of the antenuptial contract of the parties in the protocol of the notary before whom the antenuptial contract was executed.
(2) A notary attesting such a statement shall furnish the parties with a certified copy thereof on which he shall certify that the original is kept in his protocol together with the copy of the antenuptial contract of the parties or, if he is not the notary before whom the antenuptial contract was executed, he shall send the original statement by registered post to the notary in whose protocol the antenuptial contract is kept, or to the custodian of his protocol, as the case may be, and the last-mentioned notary or that custodian shall keep the original statement together with the copy of the antenuptial contract of the parties in his protocol.
(3) An antenuptial contract contemplated in subsection (1) or a certified copy thereof, or a statement signed and attested in terms of subsection (1) or a certified copy thereof contemplated in subsection (2), serves as prima facie proof of the net value of the estate of the spouse concerned at the commencement of his marriage.
(4) The net value of the estate of a spouse at the commencement of his marriage is deemed to be nil if—
(a) the liabilities of that spouse exceed his assets at such commencement;
(b) that value was not declared in his antenuptial contract or in a statement in terms of subsection (1) and the contrary is not proved.
That is what I have been saying all along.
 
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