FOR BETTER OR FOR WORSE

In our March Newsletter edition my colleague reported on our firm’s participation in the Canal Walk Wedding Show. While I was manning the stand it came as no surprise that a lot of engaged couples were inquisitive as to why a law firm would be present at a wedding show. My personal favourite catch phrase to couples would then be: “Have you given any thought to the legal side of getting married?” and the answer to this would simply be no, accompanied by a nervous and/or confused giggle.

In the last couple of months I have been quite busy with clients who have not given thought about the legal side of getting married prior to saying “I do”, and I find it rather alarming how people, even in modern times, do not consider the legal reality of tying the proverbial knot.

According to South African law a married couple is deemed to be married in community of property unless they expressly enter into and register an Antenuptial contract prior to getting married.

Here is a simple example of a scenario I was faced with a while back: Mr A and Mrs B are both originally from Timbuktu and have worked and resided in South Africa for the last twenty years. The South African law is entirely foreign and unknown to both of them. About seven years ago the couple rushed off to the Department of Home Affairs to get married. In their minds, that was it! A year ago Mr A bought a house. The Conveyancing attorney then brought it to Mr A’s attention that he and Mrs B are in fact married in community of property. The attorney had to explain exactly what the legal consequences are of being married in community. Mr A and Mrs B are both medical practitioners and in the event of something happening to one of their practices, the financial consequences could be devastating to the other spouse’s practice. It was purely by chance that the couple found out that they are married in community of property and after the impact of a joint estate was explained to the couple, they were worried.  Is this what is meant by the part where you say “for better or for worse”?

There is good news and bad news. The good news is that it is possible in South Africa to apply to Court for the change of your matrimonial property system. The bad news is that this type of application is costly. It is therefore strongly advised that couples consider all the legal aspects of marriage before walking down the aisle. Consult with a legal professional regarding the different options available on how to get married and what the legal implications are of the different matrimonial property systems.

Section 21 of the Matrimonial Property Act, Act 88 of 1984, makes provision for the change of your matrimonial property system. According to the Act a husband and wife may jointly apply to court for leave to change the matrimonial property system which applies to their marriage. The court will only grant an order to this effect if the court is satisfied that there are sound reasons for the proposed change, sufficient notice of the proposed change has been given to all the creditors of the spouses and no other person will be prejudiced by the proposed change. Should the parties be successful with such court application, the court will authorize them to enter into a notarial contract by which their future matrimonial property system will be regulated on such conditions as the court may deem fit.

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. Errors and omissions excepted (E&OE).