Marrying Out, With Or Without
Your marriage contract requires much thinking prior to the event. The so-called antenuptial contract means marrying out of community of property; to each his own. Why would couples decide to split their respective assets?
There are several reasons that people may choose to enter into an Antenuptial Contract. Some of the more common reasons that one may decide to marry out of community of property include the following:
1. To avoid being held jointly and severally liable for the debts or obligations incurred by your spouse prior to the marriage or during the marriage.
2. To protect your own assets from your spouse’s creditors.
3. You may own assets at the time of the marriage which you intend to exclude from a joint estate; and
4. To exercise independence and freedom in financial transactions, without being required to obtain consent from your spouse.
Thus an antenuptial contract means no joint property and no joint profit or loss. Namibian law provides two options for your Antenuptial Contract, namely with application of the accrual system; or without.
Without Application of the Accrual System
There will be no sharing of profit or loss by the spouses at any time. Unless purchased jointly, all assets are owned completely separately, including those brought into the marriage and those acquired during the marriage.
Neither party shall be liable for any debt or obligation incurred by the other before or during the marriage.
As there is no sharing, neither spouse has any claim against the assets of the other upon death or divorce.
With Application of the Accrual System
This is the “fair” option as it offers the same protection as marriages concluded out of community of property, while it acknowledges the marital partnership by allowing for sharing of assets gained during marriage.
Both spouses also have separate estates during the subsistence of the marriage and they do not share in each other’s profits or losses.
Although neither spouse is liable for the other spouse’s debts or obligations, the parties will be entitled to an equal share of the marriage assets upon dissolution of the marriage. If the marriage is dissolved by death, the accrual claim must be paid prior to any testamentary dispositions.
The 'accrual' is the extent to which each spouse has increased his/her respective estate by the time the marriage ends. Thus, the accrual of the estate of each spouse is the amount by which the value of his or her estate, at the dissolution of the marriage, exceeds the value thereof at the date of marriage.
Visit your legal practitioner for an example of calculating the accrual upon dissolution of the marriage.