Do I need an antenuptial contract before marriage?
An antenuptial contract is an important document that, under South African law, determines whether your marriage will exist in community of property or out of community of property, with or without the accrual system. An antenuptial contract offers a number of benefits: Preventing your intended marriage from automatically being in community of property Offering transparency in your relationship by recording the rights, duties and consequences (legal and proprietary) of your marriage Preventing unnecessary disputes with your spouse down the line What is marriage in community of property There is one estate between a husband and a wife. Property and debts acquired prior to or during the marriage are shared equally in undivided shares (50%). Both spouses are jointly liable to creditors. What is an Antenuptial contract? A contract entered into to regulate whether a marriage will be out of community of property with/without the accrual system. An ante nuptial contract must be signed by the persons entering into a marriage, two witnesses and a notary public, and it must be registered in the Deeds Registries office within the prescribed time period. The accrual system In a marriage out of community of property WITHOUT the accrual system, the spouses have their own estates which contain property and debts acquired prior to and during the marriage (“what is mine is mine and what is yours is yours”). Each spouse is separately liable to his/her creditors. Prior to the marriage, an ante nuptial contract must be entered into to indicate that the marriage will be out of community of property. A marriage out of community of property WITH the accrual system is identical to a “marriage out of community of property” but the accrual system will be applicable. The accrual system is a formula that is used to calculate how much the larger estate must pay the smaller estate once the marriage comes to an end through death or divorce. Only property acquired during the marriage can be considered when calculating the accrual. The accrual system does not automatically apply and must be included in an ante nuptial contract. Conclusion After marriage, the terms of the antenuptial contract become irrevocable unless they are amended by an order of the Supreme Court or, in some cases, by a notarial contract which must be registered in a deeds registry. This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE) Reference: https://www.legalwise.co.za/help-yourself/quicklaw-guides/marriages/ http://www.schoemanlaw.co.za/services/antenuptial-contracts/ .col-sm-10.col-sm-offset-1.col-md-8.col-md-offset-2.text-center { margin-top: 25px; color: #f3f3f3;} h6 { display: none !important; } .col-sm-8 { width: 100%; } .bg–secondary {background-image: url(https://vzri.co.za/wp-content/uploads/2018/10/firm4.jpg); background-repeat: no-repeat; background-size: cover;} h2 { color: #f3f3f3;}
What is a Title Deed?
If you are planning to buy a new property, you will need to get the title deed transferred into your name to prove that you are the owner of the property. You will need the assistance of a lawyer specialising in property transfers (also known as a conveyancer) to help you transfer the title deed into your name. You will only become the owner of the property when the Registrar of Deeds signs the transfer. After it has been signed, a copy of the title deed is kept at the Deeds Office closest to you. A Title Deed is documentary proof of ownership in terms of the Deeds Registries Act 47 of 1937. Each property has its own separate Title Deed. It is an important document containing all the details pertaining to a particular property. These details are: The name of the existing owner as well as the previous owners. A detailed property description which includes size. The purchase price of the property paid by the existing owner. Conditions applicable to the zoning, use and sale of the land. All real rights registered in respect of the property. The owner will normally have the Title Deed or a copy thereof in his possession. Before signing an offer to purchase carefully scrutinize the Title Deed. What is The Deeds Office and The Deeds Registry? There are numerous Deeds Offices throughout South Africa. Each Deeds Office holds a Deeds Registry, containing filed Title Deeds of all the properties in its particular jurisdiction. All the Deeds Registries are linked to a computer network. Your estate agent can, via a computer-linked facility from his office, examine any Title Deed (registered from 1980) in the country’s combined Deeds Registry. What’s the Difference Between a Property Deed and a Title? Title is the legal way of saying you own a right to something. For real estate purposes, title refers to ownership of the property, meaning that you have the rights to use that property. It may be a partial interest in the property or it may be the full. However, because you have title, you can access the land and potentially modify it as you see fit. Title also means that you can transfer that interest or portion that you own to others. However, you can never legally transfer more than you own. Deeds, on the other hand, are actually the legal documents that transfer title from one person to another. Sometimes the Deed is referred to as the vehicle of the property interest transfer. This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE) References https://www.westerncape.gov.za/service/title-deeds-proof-property-ownership https://www.rocketlawyer.com/article/whats-the-difference-between-a-roperty-deed-and-a-title-ps.rl http://www.conveyancing24.co.za/ .col-sm-10.col-sm-offset-1.col-md-8.col-md-offset-2.text-center { margin-top: 25px; color: #f3f3f3;} h6 { display: none !important; } .col-sm-8 { width: 100%; } .bg–secondary {background-image: url(https://vzri.co.za/wp-content/uploads/2018/10/firm4.jpg); background-repeat: no-repeat; background-size: cover;} h2 { color: #f3f3f3;}
Why is my property transfer taking so long?
Why is my property transfer taking so long? After signing a deed of sale, the purchasers often want to move into the property as soon as possible. When they are informed of the process involved prior to the property being transferred this may damper their excitement. There may also be delays in the transaction. In order to avoid unnecessary frustration, it is vital that parties to the transaction understand the processes involved and that delays are sometimes inevitable. The deed of sale will normally be the starting point in a transaction for a conveyancer who has been instructed to attend to the transfer. This conveyancer is also known as the transferring attorney and is normally the main link between the other attorneys involved the transfer transaction. Postponements, delays and interruptions A major role of the conveyancer is informing any mortgagees, for example banks, about the transfer so that any notice periods for the cancellation of bonds can start running. The notice period is usually up to 90 days. The transfer may be delayed as a result of this notice period. Obtaining the various certificates, receipts and consents applicable to the transaction in question also takes time. Examples of these is the rate clearance certificate, transfer duty receipt, homeowners’ association’s consent to the transfer, levy clearance certificate, electrical compliance certificate and plumbing certificate. The time it takes to obtain these certificates will differ from case to case. After an inspection by a plumber or electrician, for example, it may be found that certain work needs to be carried out before the certificates will be issued. Once all the documents are lodged at the Deeds Office by the conveyancer, an internal process is followed, which has different time frames in the various Deeds Offices. This time frame can also vary in a particular Deeds Office. It is best to enquire from your conveyancer what the Deeds Office time frame is at any given stage. There are many ways in which the transfer process could be delayed, these are just some of the examples. If you feel that the process is taking too long, then you should contact your conveyancer. This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. (E&OE) Reference: Aktebesorging, UNISA 2004, Department Private Law, Ramwell, Brink & West .col-sm-10.col-sm-offset-1.col-md-8.col-md-offset-2.text-center { margin-top: 25px; color: #f3f3f3;} h6 { display: none !important; } .col-sm-8 { width: 100%; } .bg–secondary {background-image: url(https://vzri.co.za/wp-content/uploads/2018/10/firm4.jpg); background-repeat: no-repeat; background-size: cover;} h2 { color: #f3f3f3;}
Planning your Estate as Newlyweds
For newlyweds, one of the most important tasks to attend to is estate planning. The estate planning will depend on what the couple wants and what form of marriage they are in. It is therefore important to keep the following in mind when planning the years ahead together. Marriage in community of property There is a joint estate, with each spouse having a 50 percent share in each and every asset in the estate (no matter in whose name it is registered); In the event of the death of one spouse, the surviving spouse will have a claim for 50 percent of the value of the combined estate. The estate is divided after all the debts have been settled in a deceased estate. When drafting a Last Will and Testament, spouses married in community of property need to be aware that it is only half of any asset that he or she is able to bequeath. Upon the death of one spouse, all banking accounts are frozen (even if they are in the name of one of the spouses), which could affect liquidity. Marriage out of community of property without the accrual system Each estate planner (spouse) retains possession of assets owned prior to the marriage. Each spouse’s estate is completely separated, even in the event of death. If you want your spouse to inherit something, you would need to outline this in your Will. Marriage out of community of property with the accrual system This is identical to a “marriage out of community of property” but the accrual system will be applicable. The accrual system is a formula that is used to calculate how much the larger estate must pay the smaller estate once the marriage comes to an end through death or divorce. This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. (E&OE) .col-sm-10.col-sm-offset-1.col-md-8.col-md-offset-2.text-center { margin-top: 25px; color: #f3f3f3;} h6 { display: none !important; } .col-sm-8 { width: 100%; } .bg–secondary {background-image: url(https://vzri.co.za/wp-content/uploads/2018/10/firm4.jpg); background-repeat: no-repeat; background-size: cover;} h2 { color: #f3f3f3;}
Antenuptial contracts: With or without the accrual system?
If you don’t have an ANC, you are automatically married in community of property. This means that there is one estate between a husband and a wife. Everything is shared equally between spouses, which includes debts. However, with an antenuptial contract, the estates of each spouse remain separate. The difference comes with the addition of the accrual system. What is an antenuptial contract? An ANC determines whether a marriage will be out of community of property with/without the accrual system. It must be signed by the persons entering into a marriage, two witnesses and a notary public, and it must be registered in the Deeds Registries office within the prescribed time period. What is the accrual system? The accrual system is a formula that is used to calculate how much the spouse with the larger estate must pay the smaller estate if the marriage comes to an end through death or divorce. Only property acquired during the marriage can be considered when calculating the accrual. If there is no accrual system, then the spouses have their own estates which contain property and debts acquired prior to and during the marriage – nothing is shared. The underlying philosophy of the accrual system is that each spouse is entitled to take out the asset value that he or she brought into the marriage, and then they share what they have built up together. The accrual system only applies if the marriage ends – either by divorce or death. You cannot claim your share of the joint estate while you’re still married. Whether or not you decide to include the accrual system in your antenuptial contract depends on the couple. Some may see the relevance while others do not. It’s important that both of you consult the lawyer who’s drawing up the ANC because both spouses need to be fully aware of the consequences. It’s also important to see someone who’s neutral, and who can mediate what goes into your ANC, because emotions can cloud your judgment, and it can be a stressful negotiation if one spouse has a lot of assets and the other doesn’t, for example. This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE) References: http://www.biznews.com/thought-leaders/2014/11/09/nine-things-need-know-antenuptial-contracts/ https://www.legalwise.co.za/help-yourself/quicklaw-guides/marriages/ .col-sm-10.col-sm-offset-1.col-md-8.col-md-offset-2.text-center { margin-top: 25px; color: #f3f3f3;} h6 { display: none !important; } .col-sm-8 { width: 100%; } .bg–secondary {background-image: url(https://vzri.co.za/wp-content/uploads/2018/10/firm4.jpg); background-repeat: no-repeat; background-size: cover;} h2 { color: #f3f3f3;}