WHAT ARE YOUR LEGAL OPTIONS WHEN YOU GET MARRIED?

“Men marry women with the hope they will never change. Women marry men with the hope they will change. Invariably they are both disappointed.” –  Albert Einstein

So you are getting married and you are both filled with excitement to take the big step. Between planning the dress, venue, catering and guest list it is still important to know the legal implications involved when saying “I do”.  Knowing what the legal implications are at the beginning means that there will be less fighting and complications involved should the marriage come to an end. It is realistic to bear this in mind because choosing a specific marital regime can have immense implications on your personal assets, your estate, business or even your career.

In South African law three marital status regimes are known. This article serves as a brief discussion on each one of these regimes.

Getting married in community of property

This entails that the parties’ separate estates are joined at marriage and now the estate is known as the ‘joint estate’. Each party has the right to dispose of the assets in the joint estate, however the consent of the other party needs to be obtained to alienate or encumber the estate assets.

This system lends itself to financial equality but this can also be to the detriment of the other party, especially in the case of insolvency. Certain assets may be excluded from the joint estate by ways of a will, but this category is limited.

It is important to bear in mind that should the parties not enter into an antenuptial contract before tying the knot; their marriage will automatically be deemed to be in community of property.

Upon divorce or dissolution of the marriage the joint estate gets split 50/50 between the parties.

Getting married out of community of property with the accrual system excluded

This marital regime is done by way of an antenuptial contract. Your attorney will draw up the contract and it must be signed in front of a notary. The accrual system must expressly be excluded in the antenuptial contract, otherwise it will apply to the couple’s marriage.

According to this system what is yours is yours and what is mine is mine. Each party maintains their separate estates and each has full right of disposal over his/her own assets without having to get any consent from the other spouse. At the dissolution of the marriage each party should walk away with what they have built up within their own estates.

This marital system is recommended where the parties already have substantial estates or income or if the one party does not want to be held liable for the debts of the other spouse. Being married out of community of property without the accrual system is popular to use to protect assets from creditors.

Getting married out of community of property with the accrual system included

The accrual system creates a form of sharing of the assets that are built up during the marriage. Neither the debts nor the assets are jointly owned.

When the marriage dissolves, either by divorce or death, the accrual or growth to each party’s estate is calculated. The growth is calculated by taking the net value of the estate at the dissolution less the net value at the commencement of the marriage. The commencement value of each estate is stated in the antenuptial contract. If one of the estates has grown more than the other during the marriage, the party with the smaller growth has a claim against the party with the greater growth, for half of the difference between the two estates.

So, now you are married and you want to change your marital system…how is this done?

The parties are required to make a joint application to the High Court to change their matrimonial property system. This is a costly and complicated application to bring. The application to court does however not guarantee a positive outcome.

Written by: Annerine du Plessis

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.