Answer to a question from a reader

How can I make sure that the house my late wife and I shared will be inherited by our children and not my future wife?

The short answer

You can negotiate an antenuptial contract with accrual with your new wife.

The whole question

Dear Athalie

How can I be sure that the house in which my late wife and I lived, and in which I now live with my children and their stepmother, will be inherited by my children, and not my present wife, now that I have married again? I have not yet signed a marriage contract.

The long answer

All marriages in South Africa are automatically in community of property unless you specifically choose to marry out of community of property, either with accrual or without accrual. 

In community of property, you and your wife have a joint estate in which you both own 50% of the joint estate. This joint estate comes to an end if you or she dies or gets divorced. If you should die, your wife would inherit the house, and any minor children would have a claim on your estate for maintenance. 

Marrying out of community of property with the accrual system means that your assets and your debts at the start of your marriage remain your assets and your debts – they are yours alone. But everything that you acquire during the marriage is shared equally, except for inheritances. That is what accrual means. If the marriage ends in divorce, only the assets that have been accrued during your marriage are split equally. 

Unless you specifically exclude it in your marriage contract, which is known as an antenuptial contract, all marriages out of community of property include the accrual system   

Truth About Money says that a lawyer needs to draw up the marriage contract for an out of community of property marriage, and that the cost for this will start at around R2,000.

Marrying out of community of property without accrual means that all your assets – everything you owned before you got married, and everything you earned during the marriage – belong to you alone. You do not share your earnings and there are no joint assets.

But, as Truth About Money points out in the same article, this is not fair on a spouse who stops working to look after children: "A marriage out of community of property with no accrual system is usually only suitable if both parties are independently wealthy when they marry."

How are antenuptial contracts drawn up?

Van Deventer & Van Deventer Incorporated says the net value of each partner must be declared at the beginning of the marriage in their antenuptial contract. This can be done in a written statement before the marriage or within six months of the marriage taking place. The statement must be signed by the other partner. It must then be authenticated by a Notary Public.

Notary Cape Town, a division of Le Roux Attorneys, says that a Notary Public is an attorney admitted and authorised by the High Court of South Africa to witness signatures, draw and attest contracts and statements, authenticate the validity of certain documents, and you need a Notary Public for an antenuptial contract. 

Both partners and the Notary Public must sign it in duplicate prior to the marriage. The antenuptial contract will then be forwarded to the deeds office in the area where the partners live. It must be registered at the deeds office within three months of the date it was signed by the Notary Public. There will also be a prescribed fee payable to the deeds office upon registration of the contract.

If the antenuptial contract is not signed or registered within the right time limits, the couple can approach the High Court in terms of the Deeds Registries Act 47 of 1937 to apply jointly for condonation for the late signing and/or registration of the antenuptial contract after they have got married. The application must be made within a reasonable time after it was discovered that the contract was not properly registered and notice has to be given to the Registrar of Deeds that the couple intends to make such an application.

The Family and Divorce Law website says that it is important that both parties consult with the Notary Public beforehand and request an explanation of the various marital regimes, and the implications of each on divorce. In fact, they say that it is a good idea for both partners to get independent and separate legal advice, so that they understand what they are committing themselves to by signing the Antenuptial Contract.

In summary: You would need to negotiate an antenuptial contract with accrual. An antenuptial contract is of course a complicated and expensive business as you need lawyers and a Notary Public, but it may be the way that you can leave your present house to your children in your will, as it is an asset you owned before you were married.

Wishing you the best,

Answered on Sept. 5, 2023, 11:52 a.m.

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