Overview

Strauss Daly aspire to be recognized as the leading law firm in South Africa, that provide quality services to our clients, both nationally and internationally. Our expertise is in almost every field of law. We specialise in Conveyancing, Litigation and Notarial work. This includes but is not limited to marriage contracts and wills.

Marriage

Have you asked the "BIG" question yet? Well, if you did then we hope that she replied with a YES.

Apart from planning the biggest day of your life you must also think about the way you want to be married. In our law there are different types of marriages. The most common are married in community of property and married out of community of property with or without the accrual system. This is why you need our expertise to assist you making the correct decision.

Below is a short explanation on the difference between married in community of property and married out of ccommunity of property so that you can have a good understanding of the marriage types and to have confidence in the type of marriage before you and your fiancé tie the knot.

1. A Marriage In Community of property

If you decide to get married in community of property the legal consequences are that each spouse will become a joint owner of an undivided share in all assets owned before the marriage and also all the assets that you may acquire after the marriage. The spouses also share in all the liabilities arising before or after the marriage.

2. A Marriage out of Community of property

The general rule is that a marriage out of community of property is concluded if the parties have entered into an antenuptial agreement. The antenuptial agreement must be signed prior to the date of marriage and we can assist you. The explanation of a marriage out of community of property is that each spouse will control his or her own estate without the interference by the other spouse. Each of the spouses is responsible for their own assets and liabilities arising before and after the date of marriage. In the antenuptial agreement the parties can further agree whether the accrual system should apply.

3. Marriage out of community of property with the Accrual System

Spouses are still married out of community of property and two separate estates still exist. The accrual of the estate of a spouse is defined as the amount by which the net value of the estate at the dissolution of the marriage exceeds the net value of estate at the commencement of that marriage. The right to share in the accrual of the others spouse's estate only arises on dissolution of the marriage by death, divorce or an order of the court. If this happen the first thing to do is to establish the net commencement value of the parties' respective estates. The commencement value of an estate is calculated as a sum of money and represents the value of the assets at the commencement of the marriage. The parties must declare the value of their estates in the antinuptial contract prior to the marriage.

The basic calculation of the accrual is as follows:

End values of the estate as per date of dissolution minus the commencement values equals the accrual. Add the accrual amounts of the spouses together and divide it by two, this will give you the accrual claim that the spouse with the smallest accrual will have against the spouse with the highest accrual.

Assets may be excluded from the operation of the accrual in the antinuptial agreement for e.g. special damages, donations and inheritance.

We truly believe that the above will assist you in making the right decision to decide on which matrimonial regime to use. Please remember that once your married you and your spouse must consider drawing up a will to make provision for your wishes. Our experts can also assist you and below is a explanation regarding wills.

Wills

A will is a document in which a testator/testatrix voluntarily sets out his/her wishes and instructions concerning the distribution of his/her estate following his/her death.

Who can make a will?

Any person over the age of 16 years and who is mentally capable of appreciating the nature and effect of his act are capable to make a will.

What does a will include?

Primarily the testator/testatrix divides the assets of his/her estate amongst his/her nominated beneficiaries, who can be legatees and heirs. A legatee is someone who is to receive a specific asset, whereas an heir receives the residue of the estate. The testator/testatrix also nominates someone or some institution to act as his executor whose duty it is to wind up the estate in terms of the Administration of Estates Act.

Who should prepare the will?

Consult an expert on wills to draft your will since the myriad of court cases concerning the validity and interpretation of wills reflects the complexity of this task. Experts are found amongst attorneys, accountants, financial institutions and trust companies. It is not a good idea to try and do it your self.

Why is a will necessary?

A testator/testatrix has great freedom of choice in determining how his assets are to be divided following his death. Should he/she not have a will the estate will be divided according to the law of intestate succession which could result in benefits being awarded to a beneficiary who would not have been nominated in the will or someone like a spouse receiving less than the testator/testatrix would have intended. The law of intestate succession is biased in favour of a spouse and direct family thus, in situations where people are in relationships and cohabit without being married to each other, it is essential that they have a will if they wish to benefit each other. The testator/testatrix may have minor children for whom a trust can be created or a guardian nominated in a will.

Who should be the executor?

The executor is responsible for winding up the estate and although he/she is nominated in the will, the Master of the High Court must officially appoint him/her. The executor can be the testator's/testatrixes spouse, child, family member or professional such as an attorney, accountant, financial institution, trust company or any combination thereof. Where the nominated executor is a lay person, the Master will require the nominee to be assisted by a professional and unless the testator/ testatrix has specified a particular professional in his will, the nominee can make his own choice.