Debt Expert - Martin Snyman


Posted by: Charmaine | 2013/06/04 14:19

How does being married with an antenuptial conract affect your debt review?

I am under debt review and have been told that the bond is registered in my name.

This is absolute hogwash as I had a lawyer do a deed search and it is and has always been in my husband's name. We are married in antenuptial conract without accrual. Octogen have now refused to keep me on debt review and say that my expenses are not all included.

What am I to do if they stop my debt review? Can I still carry on paying my creditors? Please advise.

expert answer

Posted by: Martin Snyman | 2013/06/07 14:09

Hi Charmaine,

An antenuptial contract is an agreement concluded between two parties describing, apart from other matters, how their personal assets before the marriage, assets accumulated during marriage and income is to be treated.

Should the marriage be dissolved by means of death of one of the parties or a divorce, these terms will depict how the estate is divided. This is a private contract and the terms are not public knowledge.

When you are married in community of property, you have to get your partner's consent before entering into an agreement because you have a joint estate.

If you married with an antenuptial contract, each partner has their own estate and does not require consent from the other partner to enter into contractual agreements.

This implies that if you are married with an antenuptial agreement, you can act on your own when applying for debt review because only your personal estate is involved.

It becomes a bit more complex when you then apply for debt review and later find that you have signed surety when you and your husband bought a house. This implies that you are liable for the repayment of the bond in lieu of the surety you have signed.

I suggest you follow up with the bank on what basis they hold you liable for the repayment of the bond and obtain a copy of the surety from them.

Concerning your experience with your debt counsellor, I suggest you meet with them so that you can understand the reason why they can no longer keep you under debt review.

Remember that debt review is a debt relief option available under South African legislation, but not everybody qualifies for this relief.

If for example the amount you can afford to repay monthly is insufficient to repay the debt in a reasonable period of time, debt review may not be an option for you.

For example, if monthly interest on a loan amounts to R500 but you can only afford to pay R400 per month, the debt will never be paid off and sequestration needs to be considered as an alternative debt relief measure.

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