What are the types of marriage contracts in South Africa?
When most people think of getting married, the focus, stress, excitement and money is centered around the wedding. Anyone involved in a wedding knows how many little details there are and deciding what font to put on your menu can easily cause massive anxiety. But, if you have been married, or are thinking of getting married, how much thought did you or will you put into what comes after the wedding? Specifically, is signing a contract that has nothing to do with the vendors but rather your spouse something that is at the forefront of your mind? Probably not. It should be though, and here’s why.
THERE ARE THREE DIFFERENT WAYS THAT YOU CAN GET MARRIED IN SOUTH AFRICA:
In community of property
Out of community of property without accrual
Out of community of property with accrual
A marriage in community of property is the default in South African law (including customary marriages and civil unions). If you want to enter into the other two, you need to have a specifically drawn up contract between you and your partner, by a specially qualified lawyer (known as a notary public) and have it registered at the Deeds Office order for it to count.
Overwhelmed by choices yet? Let’s break these all down.
OPTION ONE
In community of property
When we say default, we mean that you literally do not need to do anything other than get married and have that marriage registered at Home Affairs by a marriage officer. Things can get a bit trickier in terms of customary marriages as the marriage will be deemed to be concluded once certain formalities are completed and not when anything is registered. This means that you might be married in community of property without knowing it, even if your intention is to conclude a civil marriage and change the property regime before that happens - yikes!
It’s a really attractive option because it costs no money upfront and you can pretty much avoid having to think about things like death and divorce at a time when you are thinking about spending the rest of your life with someone.
It also has a nice ring to it, initially. “In community”, “joint estate”, “undivided shares”. These are words you might come across, which ties in quite sweetly to the intentions you might have for your marriage. But, these are all really significant words in a legal context that will affect you and your partner for the rest of your married life.
When you get married under this regime, you literally join your lives together - for better or worse. Everything you have before, and during, your marriage falls into a communal pot. This means all your assets, but also includes all your liabilities (personal loans, store credit, maintenance of a previous spouse and any kids from a previous marriage).
When the marriage is dissolved, all these assets and liabilities get divided between the two of you equally, regardless of what each of you has contributed in the form of money, physical assets, or debt.
One of the major risks with this type of marriage is that if one of the partners goes into debt, the creditors of that debt can claim from the joint estate of the marriage. Likewise, if one partner goes insolvent, so can the joint estate and therefore the other partner.
You will also need to get specific consent from your partner if you want to enter into certain transactions that will affect the joint estate. This could range from basic verbal consent all the way to needing prior written consent from your partner and two witnesses to that contract.
OPTION 2
Out of community of property without accrual
If that doesn’t sound like your cup of tea, you can enter into a contract with your partner before you get married (literally what translates to ante-nuptial-contract or an ANC).
In this context, each partner retains their own estate before and during the marriage. You will also not need any permission from your partner to enter into engagements that involve your individual affairs. Engagements and affairs here mean the legal things - the other interpretation is beyond either of our knowledge. When the marriage dissolves, each partner walks away with their own things - assets and liabilities.
This doesn’t mean that during the marriage the partners act as ships passing each other in the night. You will still have the obligation to contribute to the household as a married pair. This is something that all married couples will have to do irrespective of how they get married. It’s known as a duty to support one another.
If you acquire any assets together, the classic example being all the nice things on your wedding registry, you will be co-owners of these assets. Any creditors of one partner’s debt may still look at these jointly owned assets when they come to collect what’s owed to them.
OPTION 3
Out of community of property with accrual
If you enter into an ANC, and do not specifically say that you do not want the accrual system to apply, it will.
Getting married in this way means that anything you bring into the marriage remains yours to deal with. However, anything acquired during the marriage will also fall into a communal pot that will then be redistributed when the marriage ends, either by death or divorce. Some things are automatically excluded from this pot during the marriage like any inheritance or a donation from a third party to one of the partners.
Getting married is not a decision to make lightly, but if you do make that decision, you should absolutely be thinking about all the what ifs, all the better or worse, all the financial sickness and health that will come inevitably by choosing to share your life with another person in the most intimate way possible. It’s probably not going to be a very pleasant conversation to have with your partner right before you get married, where you need to consider what happens if you get divorced and when you die. But, it’s probably going to be the most important decision you ever make - both who you get married to and how this will pan out. It’s therefore imperative that you leave yourself enough time and wedding budget to give this the attention deserves. And once it’s all over, you can look forward to the cake!
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