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Marriage in South Africa - Part 1: Getting married? A few considerations
Should you spend more time considering whether to get married ‘in community- or ‘out of community’ of property?
If not considered prior to your marriage or discussed thoroughly between the spouses to be, you may regret finding out after your marriage that you are now married in terms of a particular “marital property regime” without ever having considered the legal consequences thereof.
The legal consequence of marriages in South Africa are automatically “in community of property”, unless a valid antenuptial contract has been entered into prior to the marriage.
Should you realise your grave oversight after your marriage and try to address this by attempting to register an Antenuptial Contract (or “ANC”) after your marriage, you will be in for a nasty surprise. A “Postnuptial Contract” can be registered to change your marital property regime after marriage, but this would require a costly Court Order.
By the way, what is an “ANC”?
This acronym refers to an “Antenuptial Contract”, which is a contract between you and your soon to be spouse regulating your monetary affairs and marital property system after your marriage. It needs to be signed in the presence of a Notary as well as two competent witnesses PRIOR to your marriage ánd formally registered at your local Deeds Office. All of these formal requirements are indicative of the importance of this formality.
Is it “bad” if we did not consider an ANC and find ourselves now married in community of property?
Not necessarily. It just means you never applied your minds to the three options available to you, prior to your wedding. And you will find out that your marital property regime affects just about every big monetary decision spouses typically make during their married lives.
What does that mean - a “matrimonial property regime”?
To explain: There are three matrimonial property regimes in South Africa, regulated by three different “Marriage Acts”. These “Marriage Acts” govern the legalities of marriages concluded in South Africa. Forget about these “Marriage Acts” for the moment (these will be discussed in Part 2 of this series of articles, in the near future). Let’s rather focus on the different property regimes, as referred to in layman’s terms:
- in community (of property);
- out of community (of property); and
- out of community (of property), with accrual.
These three different property regimes, apply to all legal marriages concluded in terms of the three Acts governing marriages in SA. Spousal partners actually have the option to choose any one of the three regimes best suited to them, irrespective of the specific act legalising their marriage.
So, what are the differences between these different “regimes”?
Whilst the “in community of property” regime underlies the romantic Shakespearean quote and philosophy of sharing “measure for measure” in terms of “what’s mine is yours and what’s yours is mine”, this can quickly translate to: “in for a penny, in for a pound”.
- Since all your assets are regarded as belonging to a single joint estate, this property regime may leave you and your family vulnerable to colossal monetary risks and can affect the status of your legal persona, when events occur such as claims from creditors, sequestration of the joint estate and attachment of “your assets” by a sheriff. This basically means that debts of your spouse can cause “your (half of the) estate” to also suffer loss, “your assets” to be repatriated and even “your legal status” to be restricted to that of an insolvent, with your spouse’s.
- It can also be very frustrating in the event of day-to-day business dealings by either spouse, having to obtain constant “permission” from the other, or having to co-sign.
- In the event of the passing of a spouse, the frustrating consequences of finalising the estate of your spouse, can really have a profound adverse effect on any person dealing with grief at the same time.
On the other hand, the “out of community of property” regimes, put into place hedges of protection against these sorts of risks, for instance:
- Plain “out of community of property” (“what’s yours is yours & what’s mine is mine”) allows spouses to proceed to build separate estates with complete autonomy, without the danger of attachment of assets for another’s debts. The legal status and person are also not affected in the event of the sequestration of the spouse.
- The option of “applying the accrual system to an out of community” option, acts as an “add-in” for that “sharing philosophy”, insofar as that those estates you build up separately during the marriage, can be “shared equally” afterwards, but will remain protected during the actual marriage. It even makes provision for a few exceptions on the typical rules of sharing and provides for certain exclusions.
The big deal about the differences really becomes clearer when one faces any one of the tragic events that can befall married couples: loss of fortune, loss of life and loss of love. Sad, but a true reality. ☹
Each of these regimes have a profound effect on people, especially when the third sad reality strikes: divorce. ☹☹☹
Surely, nobody wants to think of divorce or even worse – death (!) during this beautiful period in their lives? Is an ANC really such a big deal – really?
An Antenuptial Contract (ANC) is arguably one of the most underrated, yet critical documents that a person will sign in their lifetime. The consequences thereof are significant with far reaching implications for the estates of both parties. The ANC determines the matrimonial property regime which will govern your marriage and so needs to be finalised before the marriage day.
With so many decisions to be made prior to the wedding day the ANC is often not given an appropriate level of consideration with potentially severe consequences for your future.
Heed this advice
Since your marriage and lifestyle will be unique to you as a couple, do not accept the cheapest standardised template, devoid of any reflection to your particular lifestyle and intentions for the future, which may be presented to you for signing at a nominal cost. Your ANC should rather be a tailored reflection of the lifestyle you choose as newlyweds.
At VZK, we understand “starting out” and are very aware of the challenges of monetary restrictions and will endeavour to provide the best advice and tailormade Antenuptial Contract for you, within your range of affordability.
Contact me, your FNN (Friendly Neighbourhood Notary), for further information.
Sonja Janse Van Rensburg
Attorney, Notary & Conveyancer
Prokureur, Notaris & Aktevervaardiger
Van Zyl Kruger Inc
Cell Nr: 082 781 3600
E-Mail Adrress: sonja@vzk.co.za
Provided by Van Zyl Kruger
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