Persons who have previously been married, have children or engage in risky or successful businesses may consider the proposal of marriage through coloured lenses wanting to ensure that their estates remain separate from that of their spouse. This can be achieved by entering into an ante-nuptial contract (ANC) excluding the accrual system.
Simply put, the spouses are saying “what is mine is mine and what is yours is yours.” The advantage of this matrimonial regime is that spouses do not require each other’s consent when entering into certain transactions and the estate of the other spouse is protected from insolvency. Also, upon death of a spouse the surviving spouse’s estate is not impacted. Nothing precludes one from donating or bequeathing to the other.
On the other hand, an ANC including the application of the accrual system is the sweet union of the advantages of the marriage in community of property and out of community of property but without the disadvantages thereof.
This regime provides for spouses to declare the commencement value of their estates at the date of entering into the contract, which estate up until that point will remain separate. If the marriage ends by death or divorce, the spouse’s estate which
shows no growth or lesser growth during the duration of the marriage acquires a claim against the other spouse for half of the difference of what has been accrued during the marriage.
This matrimonial regime has the same legal advantages of the marriage out of community of property except that it maintains financial equality between spouses, as spouses who may not necessarily contribute financially to the marriage may contribute in other ways to which you cannot put a monetary value to such as raising the children. This system suits couples who intend to have children and provides a sense of sharing in the financial growth of the accrued estate.
