People often get caught up in the excitement of planning to walk down the aisle and forget that there are legal obligations attached to marriage.
The first questions often are “have you found your wedding dress or chosen your venue?”
As a couple, you should be asking yourselves whether you have chosen a marital regime best suited to your circumstances. Your marital regime will have an effect on the rest of your lives.
When planning your wedding and drawing a budget, make allowance for legal services. The costs of seeking good legal advice from the start can save you time, emotional stress and money in the long run.
The marital regime relates to the financial aspects and consequences of the estates of the spouse to a marriage. An estate of a person is the assets and the liabilities.
There are different matrimonial property regimes that are available to spouses:
1. In community of property:
This is the default legal position in South African for all marriages. Simply put, the estates of the spouses are not seen as two individual estates, but rather as one, joint estate. This means that the assets and the liabilities of both parties are shared:- the benefits and the responsibilities are equal. This regime has advantages and disadvantages and it is up to the couple to decide whether they are happy for their estates to joined as one.
If the parties to a marriage do not wish to be married ‘in community of property’ then they can enter into a contract which allows for a different outcome. They can therefore be married ‘out of community of property’. The spouses enter an agreement called an Antenuptial contract. They contract out of the default position.
2. Out of community of property
A marriage ‘out of community of property’ is when the spouses wish to keep their estates separate and independent. i.e. they do not wish to have one, joint estate as they would if they were to marry without a contract and ‘in community of property’. There are advantages and disadvantages to this regime and it is the personal choice of the parties on how they wish to marry.
To achieve a marriage ‘out of community of property’ the parties need to sign an Antenuptial Contract. This contract can only be signed with a Notary Public and must signed before the wedding or ceremony.
When spouses decide to marry ‘out of community of property’ and conclude an Antenuptial contract, they have options to include some sharing of their estates by way of an accrual system. The accrual system can be included as a clause in the contract and can allow for asset sharing. Asset sharing will depend on the number of years of the marriage and the estates of the spouses
Each Antenuptial contract is unique and the clauses will depend on the couple to be married and their personal circumstances.
There are advantages and disadvantages to include or exclude a system of accrual in an Antenuptial contract. An experienced Notary Public will be able to explain the various options and guide the couple before they sign.
It is important that potential spouses seek legal advice from an attorney who is also adequately qualified as a Notary Public before they walk down the aisle.
For direct answers to your specific personal questions, please contact us directly.
Read more about our family law services.
Author – Jenna Phillips