Wedding bells have a way of drowning out the fine print. The endless
possibilities that come with finding a partner for life can overshadow all else.
But deciding how you get married, legally, requires a focus on practicality. Who
gets what if the marriage ends is not a pleasant discussion and one that is
sometimes brushed over too lightly in the name of good faith. Now might be a
good time to review your marital regime, and decide whether it’s suitable given
your current situation.
The default arrangement
An antenuptial contract, also known as an ANC, is an agreement that
stipulates how you are legally married. If you have not put an ANC in place, the
default regime is Marriage In Community of Property. Under this arrangement, all
assets and liabilities attributable to the couple are considered to be part of
the joint estate, irrespective of whether they were acquired or incurred before
or after getting married. This regime has important repercussions.
No matter
who is responsible for the growth of the estate’s assets, each spouse has an
equal claim to its value. The same applies to liabilities; your spouse’s
creditors become your creditors and vice versa. So, don’t marry a gambler under
this regime. The broader implications of this default framework are such that
you would be wise to manage your financial affairs alongside your partner,
rather than independently. Taking out a loan? Consult them. Drafting a will?
You’ll need their input and consent.
Are there other options?
Whereas being married In Community of Property is a somewhat collaborative
undertaking to manage your finances with your partner, choosing an Out of
Community of Property regime shifts financial responsibility and ownership back
to the individuals. The purest form of this marriage regime carries the
sub-classification of ‘without accrual’ where each spouse assumes sole
responsibility and ownership of their respective liabilities and assets. What’s
mine is mine. What’s yours is yours. Forever and ever.
A marriage Out of Community of Property ‘with accrual’ brings an element of
sharing back into the equation. The respective spouses still maintain separate
estates once married, but share, to an extent, in the growth of the assets they
accumulate during their marriage.
Things to consider before changing regimes
To change the legal form of your marriage a postnuptial contract must be
registered. This requires an application to the High Court. The success of the
application hinges on the following:
- There must be no objection from your spouse
- There is no pending legal action by any creditors against you or your
spouse - Neither you nor your spouse have been declared insolvent, or have
had sequestration proceedings brought against you - Sound reasons for the proposed change must be stated
- Sufficient notice of the proposed change must be given to
creditors through registered mail, the Government Gazette and one or two
local newspapers - No other persons must be prejudiced by the proposed change
Comprehensive documentation of a FICA nature must accompany the application,
but it’s a surmountable task in the context of what’s at stake. A call to a
local attorney’s office revealed that the costs of a straightforward change to
your marriage regime would total roughly R40,000.00. The process is likely to
take between 4 – 5 months to complete.
Don’t overlook the legalities
While no one wants to enter into a marriage thinking of how it might end one
day, the legal implications of a marriage can’t be glossed over, tempting as it
may be to dismiss the topic as “boring”. No matter what the future marriage
holds for your marriage, it is critical to understand the legal consequences of
how you are married. Should you wish to discuss the most appropriate marital
regime for your particular circumstance, our financial advisors are well
equipped to help you consider the options.
