Marry me, please?
He went down on his knee and popped the question. Your eyes went all teary and you ecstatically yelled, “YES!” And you lived happily ever after…
Not. This is just the beginning of a lifelong contract.
For many, an engagement and subsequent marriage is merely a love story. But for those who are in business, end up in a divorce or whose spouse dies, tieing the knot suddenly has contractual consequences.
An engagement is a contract between parties who agree to get married on a specific day in the future. This contract then forms the basis of the second contract: the marriage.
During the engagement, it is very important that you decide on what the marriage regime between you and your partner will be.
Types of Marriage Regimes in South Africa
To decide on the specific regime, it is important that the parties consult an attorney for the best advice in their specific situation.
In South Africa, there is one of three options to choose from. Either you get married In Community of Property, or Out of Community of Property with the Accrual System. The third option is Out of Community of Property excluding the Accrual System.
What is In Community of Property?
In all circumstances, it is best not to get married In Community of Property. This specific regime combines the two parties’ estates on the date of marriage into one. This effectively means that everything that you own and you owe, becomes your spouse’s assets and liabilities, just as much as it is yours, on the date of your marriage. Your assets belonging to you before the marriage are no longer yours exclusively. It can be sold by Creditors of your spouse to settle debts they have incurred. Not a very wise choice for any person. Especially not if you are a business person.
For this regime, there are no formal requirements. You can merely get married.
How does Out of Community of Property Work?
Out of Community of Property means that your assets before the marriage remain yours. However, this will only remain yours exclusively if you have excluded the assets from the Accrual system. Assets not calculated and/or specified might end up in the accrual between the parties. It is therefore important to have the accurate asset value and listed items if you elect the Accrual System to apply.
When the Accrual system applies, the parties state what each party’s asset value is on the date of the marriage, which value (and you can also select specific assets) will then be excluded from the accrual during the marriage. The accrual will be calculated on the date of the contract between the parties is terminated, which is either by death or by divorce. The accrual will then be divided between the parties equally.
If both parties have nothing and start at a zero value, everything that each party then accumulates will fall within the accrual between them. This is the favorite regime where one party will proceed with a career whilst the other will be raising children.
There is some danger in choosing the Accrual system to apply too. A clever attorney, when acting against either spouse on behalf of a creditor, can obtain a copy of this contract to determine the specific regime. When the Accrual System is included, specific assets are often named, which will assist an attorney for a creditor to seek assets to sell in an execution sale.
What Happens When the Accrual System is Excluded?
You and your spouse will not share in one’s assets or liabilities when the Accrual system is excluded in toto. Yours is yours and your spouse’s, your spouse’s. It includes your assets and your liabilities. You do not have to share in your assets accumulated during the marriage if the marriage ends in divorce.
What Is The Contract Called?
The contract for a regime of Out of Community of Property, including or excluding the Accrual System is called the Antenuptial Contract (ANC in legal terms). This contract will be registered in the Deed’s Office and will be available to third parties upon request. An Attorney and Notary will assist you with such a contract. The cost for such a contract is plus/minus R 2 500.
Before you thus tie the knot and sign your marriage certificate, be sure to contact an Attorney to assist you with the contract that is tailored for you and your future spouse’s needs.
For further information, contact DPD Attorneys / Conveyancers on +27 21 949 5833.
Contract happily ever after!