So you are married in Community of Property. Damn! That means that if one of you gets sequestrated (bankrupt) you both go down together. Very romantic, but totally unnecessary.

Antenuptial Contracts – An expensive safety  net

The good news is that you can convert to an Antenuptial Contract (I suppose it is called a Post-Nuptial contract, but the effect is the same).

Convert your wealth to separate estates

We can’t help you, but my attorney client and friend, Dino Tserkezis of KG Tserkezis Inc (dino@kgt.co.za) advises me that if you are married in Community of Property, you can apply to the High Court to convert your joint estate (wealth) to separate estates. The proposal has to be published in the newspapers and Government Gazette and there is due process. If there are no objections by creditors and everything goes smoothly, the current cost is about R40 000 all in. Of course, if problems arise, then the costs will be higher.

A word of caution. If you are married under an ANC and one of you makes a donation to the other (one way of shifting assets from one estate to the next free of donations tax), those assets then fall outside of the accrual and the receiving spouse has sole title to them.

Another word of caution. If you see the bankruptcy coming and you go through the above process in anticipation of the coming attack by creditors, chances are that the courts will overturn what you’ve done.

This lesson in life? Same old one – there’s always a better way to do something. Think out of the box. Get divorced and then re-marry under ANC. Just make sure she’ll have you back!

The huge downside to all of this is that on death, about 30% of your wealth will go in taxes (assuming that you die reasonably wealthy). If you bequeath everything to each other, these taxes (CGT and Estate Duty) will hit the second dying’s estate. Yes, there are allowances, but the wealthier you are, the less relevant they become. 

Form a Trust – The ultimate defense

You can solve the problem in its entirety by selling your growth assets to a Trust structure. The proceeds of the sale will remain as an asset in your joint estate, but the growth in value of those assets will be protected both from your creditors and from the taxes on death. Then, between you, you can donate R200 000 per year to the trust structure, on loan account, free of Donations Tax. The effect of this is to reduce the net amount which the trust structure owes your joint estate. The reason that I refer to a trust structure rather than a trust, is that normally the trust will own a company which, in turn, owns the assets.

Need help with converting your COP marriage to ANC?

Contact us today or set up a free meeting with our CEO, Derek Springett, to discuss your options.
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