Contracts and Agreements

1Commercial Agreements
Drafting and vetting of commercial agreements (lease, sale of immovable properties, other property related agreements ie creation of servitudes for right of way,). Notarial Agreements

Agreements to be executed before a notary by law, certain documents are expected to achieve greater certainty. These are:

  • Antenuptial contracts, Postnuptial contracts
  • Authentication documents
  • Certain documents relating to the transfer of property, ie servitudes
  • Certain forms of security or sessions are also executed in the presence of a notary and registered in the deeds office.
2Antenuptial agreements
If you marry without any form of antenuptial contract, your marriage is in community of property. If you conclude an antenuptial contract prior to your marriage, the accrual system will apply unless expressly excluded in the contract.

Marriage in Community of Property:

(i) Both spouses share the assets and liabilities equally
(ii) While both spouses have equal powers of administration and can act independently of each other, consent of the other spouse is required for a number of transactions, e.g.:

a) Written consent for important transactions such as those dealing with fixed property, suretyships and credit agreements.
b) Informal consent for less important transactions including, for example, the sale of household furniture. This type of marriage gives legal and economic equality to both spouses. During the marriage and on its dissolution (by divorce or death) both partners are usually entitled to a half share of the joint estate but both are liable for debts and the joint estate of the spouses is sequestrated upon insolvency.

Marriage out of Community of Property with the Accrual System:

(i) Each spouse retains control of his or her separate property and enjoys the increase thereof or suffers alone any decrease thereof and is responsible for his or her debts.

(ii) On dissolution of marriage, the accrual ie. the increase of the asset value of the marriage is shared in proportion to the accrual stipulated in the antenuptial contract, usually equally. You may specify ( in the antenuptial contract ) that certain assets brought into the marriage or a specified value thereof (a commencement value) be excluded from operation of the accrual. This system enables each spouse to retain his or her separate property but to share increases. If no commencement value is specified in the antenuptial contract or no assets or profits therefrom are specifically excluded, the entire marriage asset value ( excluding certain statutory exceptions ) will be regarded as having accrued after the date of marriage and be liable to be divided on termination of the marriage. This system also protects each spouse against debts of the other.

Remember: If you do not want the accrual system to apply, it must specifically be excluded in the antenuptial contract. Marriage out of Community of Property without the Accrual System This achieves a complete separation of assets of spouses - not only those brought into the marriage but also those acquired during the marriage. There is no sharing and on dissolution of the marriage, neither spouse has any claim against the assets of the other. Similarly, neither spouse is liable for the debts of the other. This highlights some important aspects of the Matrimonial Property Act."
3Trusts
In South Africa, there are basically three types of trusts. These are living trusts (in South Africa called inter vivos trusts), testamentary trusts and bewind trusts.

Testamentary trusts are created at the winding up of a deceased estate following a specific stipulation in the deceased person's will that a trust must be set up. Testamentary trusts are usually created to hold assets on behalf of minor children, since minor children can not in terms of South African law inherit anything (in the absence of a trust, assets  from the deceased estate left to minor children are sold, and the money is paid to them when they reach adulthood).

Bewind trusts are created as trading vehicles providing trustees with limited liability and certain tax advantages.

There are two types of living trusts in South Africa, namely vested trusts and discretionary trusts. In vested trusts, the benefits of the beneficiaries are set out in the trust deed, whereas in discretionary trusts the trustees have full discretion at all times about how much each beneficiary is to benefit.

Parties to the Trust

There are three parties in a living trust, namely the founder, the trustees and the beneficiaries. The trust is managed by the trustees for the benefit of the beneficiaries. The beneficiaries can be any legal persons, including living people, other trusts, and registered businesses. Trustees may also be beneficiaries.

Establishing a Living Trust

The trust is created by drafting a trust deed (usually in co-operation with an attorney specialising in trust law) and registering the trust with the local High Court. The trust becomes effective as soon as it is registered.

Asset Protection

One of the main advantages of a living trust is the protection of assets from creditors. In an ideal situation, since assets held by the trust are not owned by the trustees or the beneficiaries, the creditors of trustees or beneficiaries can have no claim against the trust (there are exceptions).

A common scenario of using living trusts for asset protection is a husband and wife acting as trustees along with a third unrelated trustee. The trust is granted a loan equal to the value of their assets, then the trust buys their assets using the loan, and finally the trust pays off the loan over time. When any of the trustees die, the trust and any assets owned by it, remain unaffected.

Assets transferred into a living trust remain at risk from external creditors for 6 months if the previous owner of the assets is solvent at the time of transfer, or 24 months if he/she is insolvent at the time of transfer. After 24 months, creditors have no claim against assets in the trust, although they can attempt to attach the loan account, thereby forcing the trust to sell its assets. Assets can be transferred into the living trust by selling it to the trust (through a loan granted to the trust) or donating cash to it (any person can donate R30 000 per year tax free; 20% donations tax applies to further donations within the year).