Love and the Law

Getting married is all romance and excitement, but more often than not we forget that love and marriage also has legalities. We easily get caught up in the planning and organizing of the day only, not considering that we also have to ensure that we are legally allowed to marry; that we understand the legal consequences of marriage; and that we ensure that our marriage will comply with all the legal requirements for a valid marriage.

Teaming up should always be contractual…

To get everything in order for your contract (and marriage), be sure to consult an attorney at least two months prior to your wedding date to obtain advice and discuss the necessity of signing an antenuptial agreement. In South Africa there are two main marriage regimes:

1. Marriage in community of property; and
2. Marriage out of community of property (with or without accrual).

If you want your marriage regime to be out of community of property, you must sign a marriage contract (Antenuptial Agreement), in front of a Notary, BEFORE you get married (in other words BEFORE you say ‘I do’). The antenuptial agreement must be registered in a Deeds Office within 3 months after date of signature. If you do not sign an antenuptial agreement before you get married, you will automatically be married in community of property.

Marriage in Community of Property:

The effect of this regime is that all the property that the spouses had before the marriage, and all the property that they may acquire after date of marriage, will fall into the communal/joint estate of the spouses. The spouses’ powers to deal with the property in the joint estate are limited and for most juristic acts they must obtain each other’s permission.

Marriage out of Community of Property with the accrual system:

The effect of this regime is each spouse will keep as their own, all the assets and liabilities that he/she had before the marriage. The assets that a spouse may acquire during the marriage will form part of the accrual (growth) of that spouse’s estate. During the marriage each spouse will retain and control his/her own estate. Each spouse can deal with his/her assets without the other spouse’s permission. At the date of dissolution of the marriage, the spouse whose estate has shown the least growth (accrual), will have an accrual claim against the other spouse’s estate for half of the difference between the accruals of the respective estates. The right to accrual only arises at the dissolution of the marriage by either divorce or death and cannot be ceded or attached by creditors during the marriage. Inheritances, donations, pension funds and other assets can be specifically excluded from the accrual.

Marriage out of Community of Property without the accrual system:

The effect of this system is that both spouses will remain in the same patrimonial position that they were before marriage. Each spouse will retain all the assets and liabilities that he/she had before marriage. Each spouse will retain everything that he/she may acquire during the marriage. Each spouse can deal with his/her assets without the other spouse’s permission. A spouse will not be able to share in anything that the other spouse acquires during the marriage.

Each of these marriage regimes has its own advantages and disadvantages. It will depend on each specific couple’s circumstances, which regime will best suit them. An antenuptial agreement is also a financial planning tool.