So, why get married under an ANC rather than in Community of Property (COP)? Isn't the latter fairer to both spouses?
That depends on the type of ANC contract that you sign. There are two possibilities and I have compared them with COP -
- With accrual. This is, by far, the most common arrangement and is totally fair in my view. The two parties declare in the contract, what assets they have prior to the marriage. These assets remain uniquely theirs and are not shared by the other party. However, any assets added subsequent to the marriage are separately owned 50/50 by each of the parties. That is, one party owns one half and the other party owns the other half.
- Without accrual. This is the one that is not, in my view, fair to both parties. The initial ownership is the same as under the other ANC, but now, any assets accumulated by one party subsequent to the marriage are not shared by the other party.
- Community of Property. The joint estate is owned by both parties together, regardless of who owned what to begin with.
The reason that it is best to marry under ANC is that the two estates are always separate. So, if one party is sequestrated, only that party's share is lost to creditors.
You should be aware of the following -
- Traditional marriages are in COP, however a subsequent civil marriage can still be under an ANC.
- COP can be changed to a Post Natal Contract, but this is expensive because it is a High Court matter.
- The easier way to change COP to ANC is to get divorced and then re-marry.
- If one party makes a donation to the other under the accrual system, whatever is donated is added to the receiving party's exclusive assets and does not form part of the accrual.
- SARS does not require parties to be married in order for them to enjoy the significant tax benefits of being "Spouses". They simply have to consider themselves to be same sex or opposite sex "Life partners".
