Protect Your Assets – Not Just Your Heart!
Once a couple is engaged, they start the wedding planning – which is quite a task. But as part of this planning how much effort does the couple allocate to considering and planning for the legal consequences of their marriage, and the affect that the marriage will have on financial planning and position later in life? Unfortunately, in our experience, soon to be wedded couples tend to leave this for last– if at all. if you ask any attorney practicing in the realm of family and/or divorce law, they will tell you that probably the most important decision you can make (after deciding to get married), is deciding what marital regime will apply to your marriage. In this regard, it is of the utmost importance that couples acquaint themselves with the options available to them and most especially the implications of each option.
By way of introduction, and very broadly, in terms of South African Law there are 3 marital regimes that govern a marriage. Each of them poses their own advantages and disadvantages. There is not one that can be said to be “better” than the other, as each couple is different, and their needs and plans are different.
So, what are the marital regimes?
OPTION 1 – MARRIED IN COMMUNITY OF PROPERTY
This is the default position in South Africa if you get married without consulting an attorney (even if you conclude a recognised customary marriage or civil union) you will be married in community of property. This means that all your assets and liabilities (whether acquired before or during the marriage) will be shared between you (during and after the marriage).
If one spouse is declared insolvent or is sued for debt this affects the other spouse’s status and assets.
OPTION 2 – MARRIED OUT OF COMMUNITY OF PROPERTY WITH AN ANTE-NUPTIAL CONTRACT WITHOUT THE ACCRUAL SYSTEM
Assets and liabilities of either spouse are not shared at the end of the marriage (either death or divorce), whether acquired during or before marriage.
If one spouse is declared insolvent or is sued for debt the other spouse’s estate is protected.
OPTION 3 – MARRIED WITH AN ANTE-NUPTIAL CONTRACT WITH THE ACCRUAL SYSTEM
The estates of either spouse before marriage is not shared and spouses only share in what is acquired during the marriage.
Sharing only occurs at the end of the marriage (either death or divorce).
If one spouse is declared insolvent or is sued for debt the other spouse’s estate is protected.
How do I choose the option to be married out of community of property?
So, what if I want to be married “out of community of property” (being either option 2 or 3)?
You must conclude a valid ante-nuptial contract before your marriage is concluded. This document must be signed by both parties (unless power of Attorney is granted to your Attorney to sign on your behalf in front of the Notary Public); notarised by a Notary Public and witnessed.
Registration of the contract need not be done before marriage but must be registered at the Deeds office within 3 months – this is done by the Notary Public.
Can you change your marital regime after marriage?
The simple answer to this question is “yes”, but it is not a process as simple and straightforward as an ante-nuptial contract, but it can be done.
This entails an application to the High Court to have your marital regime changed. You must also inform all creditors – as the Court must be satisfied that no one is being unduly prejudiced by the change. This application is risk (it may not always be granted) and it is often very costly.
Conclusion
Taking the step to enter marriage, is one that is not usually taken lightly. From deciding and planning the engagement to planning the wedding this all usually takes time, thought and research. Likewise – with the financial planning of your marriage, take the time to research and find out which marital regime suits your marriage. Do not leave this decision for the last minute. It is one that will affect the rest of your life. Make sure to consult with an attorney (either together or on your own), it can have far reaching effects when you sign a document that has been presented to you without you fully understanding what it means.
AURELIA PEARL SINGH
PRACTISING ATTORNEY
This article is provided for informational purposes only and should not be substituted for legal advice on any specific matter. Any opinions expressed herein are subject to the law as at the time of writing and will change in accordance with any change in the law. We recommend that you contact HJW Attorneys at info@hjw.co.za directly for advice applicable to your specific matter.