Couples can find it awkward to deal with this matter as it may appear that such a discussion indicates a lack of trust and commitment. How can you choose rings and imagine the end of your union at the same time?! But the reality is that all marriages end in a legal sense, even if we think our love will go on forever. Also, an Antenuptial Contract is frequently well advised for responsible financial management during a union. Since the legal structure of a union is extremely expensive and intricate to alter after the event, it is critical that you consider this matter seriously. To help you consider the legal options available to you before we meet, I have prepared a brief description in simple terms. This is by no means a thorough legal definition, but merely a jargon free thumbnail.
If you have any questions regarding the legal side of marriage, visit our Antenuptial Contracts category to contact the lawyers listed there.
In Community of Property
If you do not sign a specially prepared contract before your marriage / civil union, you will be deemed to be married “in community of property”. This means that everything you each have (assets and debts) before your union and which you acquire during your union whether by remuneration, inheritance (unless expressly excluded), gifts or otherwise is shared by both of you.
The advantage of this system is that it treats both of you equally.
The disadvantage is that both spouses are jointly and severally liable (if one of you has or gets into debt or even becomes insolvent, the other spouse will also be held responsible for what is owed). This option is thus ill advised if either or both of you run your own business (or may do so one day). Also, neither spouse may sell or give away anything of value without the written consent of the other.
That is why it is often a good idea to be married “out of community of property”. To do so, you must sign a specially prepared contract before your marriage / civil union. This is called an Antenuptial Contract, or ANC (a before union contract). There are two different types of ANCs and both need to be prepared by and signed in front of a Notary Public before you are married.
Out of Community of Property Without Accrual
Each of you keeps separate ownership of everything (assets and debts) which you bring into the union and acquire during the union. All inheritances, legacies and donations made to either of you before and during the union are automatically excluded.
The advantage of this system is that if one of you gets into financial trouble then the other one is able to retain his/her assets and you are not both affected by financial misfortune.
The disadvantage is that it leads to an unequal distribution of assets. Non-monetary contributions (such as looking after a home) are not compensated for.
To overcome this disadvantage, you may want to consider the third option:
Out of Community of Property with the Accrual System
This system combines the best of the other two and avoids the disadvantages of both. It is based on the idea that both of you will contribute equally to the union and should therefore share equally in the benefits gained during the union. The Accrual System recognizes emotional and physical support as contributions in additional to financial ones. On the other hand, each of you is protected from the debts (& possible insolvency) of the other. All inheritances, legacies and donations made to either of you before and during the union are automatically excluded.
If you choose this system, you will each need to list your assets and debts and note anything of special sentimental or financial value to you. These values do not need to be exact, but must simply be a figure that both parties feel comfortable with. In each instance subtract any money still owing from the current market value and list the net value.
- list assets which increase in value on an annual basis (e.g. property, shares)
- list assets which decrease in value on an annual basis (e.g. cars, furniture)
- list assets with sentimental value (e.g. art, jewelry)
After these lists have been recorded and your contract signed, the total financial gain made by both of you together is shared between both of you equally at the end of your marriage / civil union.
In order to prepare your Antenuptial Contract I will need a copy of your identity book if you are a South African citizen or your Passports if you are not a South African citizen.
A Note from Light Attorneys
I enjoy meeting with couples on the eve of their marriage to discuss the legal options available to them. However, should it be inconvenient for you to come to my office, I can obtain all the information I require and answer all queries by email. Once the draft Antenuptial Contract has been approved by you, I email through the final document together with a Special Power of Attorney which gives me authority to notarize the Antenuptial Contract in your absence. Once both documents have been signed by you, the originals are to be posted to me. I then notarize your Antenuptial Contract and send a letter to your minister or marital officer informing him/her of your chosen marital regime. Your contract must be signed and notarized before your marriage takes place.
Article Provided By Michelle from Light Attorneys
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