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The ABC’s of the Legal Side To Marriage

Your wedding day will be one of the most memorable days of your life, but the legal implications of this big step should not be forgotten in the rush to plan the perfect day.

Most of the exciting, fun details have been decided on, and now (for just a short while, at least) it’s time to deal with the serious issues. We asked our legal gurus to put together a basic guide on everything you need to know before you sign on the dotted line.

Many people are more drawn into the eyes of their spouses prior to the marriage and we don’t blame you. But, the issue of the antenuptial contract (ANC) is of huge importance - so take your time when deciding which marital regime works best for you and your partner.

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These are your options:

Married in community of property

What is mine is yours, including our debt.

Firstly, you do not need a contract to be married this way, which means you will automatically be married in community of property if you do not sign an antenuptial contract. Meaning that in this marital regime, all your assets will become one joint estate.

If your spouse incurs debt, you are jointly liable. This also means that if your spouse becomes bankrupt or racks up huge debts, his or her creditors can legally attach your assets to recover the money owed to them.
Entering any legal contract would require both your and your spouse’s signature.

Married out of community of property with accrual

You share the upside, but not the debt.

Sounds too good to be true? Well, before you get ahead of yourself, you would need to sign an antenuptial contract. In this marital regime, you’ll still own your assets but you’ll have to share whatever you accumulate during the marriage.

Here’s where things get a bit sticky - if a divorce or death occurs, the party with the lesser growth in assets has a claim against the other for the difference in the growth value of assets, divided by two.

The up-side would be that if you decided to get married out of community of property (with or without accrual), you would not be responsible for your partner’s debt.

Worried that your assets may be attached to account for your spouse’s debts? You are afforded extra protection and any bequests or inheritances are automatically excluded from your divorce-settlement agreement.

Married out of community of property without accrual

We keep everything separate

You’d need an antenuptial contract to be married this way. In this marital regime, you each own your assets and have no responsibility to share in the growth of those assets, or each other’s debts.

Although no one wants to think about divorce when they are about to get married, the sad reality is that divorces are becoming more common.

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Why are the terms of these marital regimes important?

Upon divorce, these terms are vital when it comes to your retirement fund. If you are married in community of property or out of community of property with accrual, your retirement fund benefits will be taken into account when splitting assets during the divorce.

Keep in mind that retirement fund benefits are not taken into account upon divorce if you are married out of community without accrual.
For now, this is what you need to know about the three different marital regimes before walking down the aisle. However, below are three other factors that you might want to know about more about.

Lobola & formal marriage

Going the traditional route?

The Recognition of Customary Marriages Act recognises customary marriages and one is assumed to be married under community of property unless an antenuptial contract prior to marriage has been signed.

Although lobola is not required to be paid in order to be recognised, the payment of lobola helps to show that the traditions of a customary marriage were upheld.

Within three months of taking place, a customary marriage must be registered at the department of home affairs.
Did you know that whilst there is no restriction on the number of customary marriages a man may enter into, no further marriage may be entered into unless an order from a court stipulates the future marital regime of his marriage.

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Joint bank accounts

Always a sticky topic at dinner parties - this is a very personal decision and depends on the level of trust between you and your partner.
However, it is a good idea to always have separate bank accounts to control payments such as salaries separately.

Those separate accounts could then feed into a joint account for “joint expenses”. If your bank account is frozen upon death and should it be a joint account, it will be controlled by the executor if one party dies.

If that happens, you can ask the nominated executor to get the will of the deceased partner lodged with the Master of the High Court. Only the executor has the power then to “unfreeze” the bank account. Legally, the death of a person who leaves property or a will must be reported to the Master of the High Court within two weeks of death.

Buying a house together?

Buying your first home together as a couple could be an exciting but daunting task whether you’re married or not. If you’re looking to buy a house together before walking down the aisle experts recommend that you keep the transaction “business-like” and have a properly drafted contract drawn up.

What should be included in the contract, is the following:

How the bond repayment will work;
How much each party contributed to the deposit,
Who will be responsible for the maintenance of the property; and if one party wishes to sell the property, how will that be decided upon?

So, now that you’re clued up on all the legal side of things, you can go back to the exciting and fun details of planning a wedding because who needs the added drama of things getting nasty?

Contributors

 
Greeff Attorneys

Greeff Attorneys

Greeff Attorneys is a dynamic and service focused law firm based in Cape Town, South Africa. We focus on business law, property law and estate planning.

Maraschin Attorneys

Maraschin Attorneys

Over the past 30 years we have streamlined an effective and efficient personalised service to our clients.