Getting Married? Here’s What You Should Know, Legally Speaking

June 14, 2023
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Notarial and Trust Law|Notarial Practise and Trust Law

Getting Married: Know the Facts

Getting married is a decision – and an event – that can profoundly affect the rest of your life. It’s a joyful occasion, a declaration of intent, and a legal commitment to another person. Because of that, it makes sense to ensure that the interests of both you and your spouse are properly protected.

Statistically, South Africans are waiting longer to get married – but the divorce rate still remains consistent.

Obtaining good legal advice before you get married can save you an enormous amount of stress and expense down the line, not only in the unfortunate case of a divorce. Remember that your marital status can affect future issues like your financial liability for debts incurred, or the division of assets in the case of a divorce.

This is not pessimism – it’s healthy realism. Ships have lifeboats, not because they expect to sink, but because it’s a reasonable precaution. Smart marriage planning is no different!

How is Marriage Defined Under South African Law?

In South Africa, a ‘spouse’ means someone who you marry either in terms of the Civil Marriages Act, the Customary Marriages Act, or the Civil Union Act. This allows for great freedom – spouses could be a heterosexual or homosexual couple, or more than two people in a polygamous customary marriage. This article is intended to give you a brief outline and overview of some of the options to consider - but remember that obtaining face-to-face legal counsel is necessary to make an informed choice based on your personal circumstances.

At Witz Inc., we’re sensitive to and supportive of the needs and preferences of our clients. Our approach is one of inclusivity and insight, and we’re committed to providing you with solid legal advice and assistance, underscored by a high level of expertise.

So, how do you decide which type of antenuptial contract is right for you and your spouse?

Choosing the Right Marriage Contract

In a sense, a marriage is a partnership in the same way that two businesses can form a partnership. How you define that partnership – and the rules attached to it – can either benefit or disadvantage you as the partnership grows. Setting up the right kind of marital contract upfront is an intelligent and practical step.

In Community of Property

Getting married ‘in community of property’ is relatively straightforward, and it’s the default state of a marriage unless an antenuptial contract stipulates otherwise. However, it’s not usually recommended. Here’s why:

  • You’re literally merging your assets and liabilities with those of your spouse/s, so you’re giving up part ownership of any assets you bring into the marriage.
  • You and your spouse are viewed as one legal entity, which means each of you becomes responsible for the other’s debts or liabilities.
  • In the event of your marriage dissolving, everything is split equally, regardless of who has contributed or earned a greater share of your combined assets.
  • In the case of insolvency, the joint estate of both spouses are sequestrated.

Essentially, getting married in community of property means that you forfeit your legal individuality and are willing to expose yourself to legal or financial risk on behalf of your spouse. If that’s not what you would prefer, then it’s extremely important to enter into an antenuptial contract – one where you’re getting married out of community of property.

Out of Community of Property

As the name suggests, this type of antenuptial contract stipulates that the shared ‘community’ – or merged legal identity – will not apply to spouses in a marriage.

To ensure this is done properly, you should ensure you do the following:

  • Consult with an attorney to fully understand your options. Remember that your attorney has a wealth of experience and insight and can provide you with the best advice to suit your circumstances and needs.
  • Next, the attorney will draw up the contract for you, ensuring that both you and your spouse to be are satisfied with what is stipulated.
  • The contract must then be signed in the presence of a notary public. At Witz Inc, we do this all under one roof, through our dedicated notarial practice and trust law department.
  • The contract is then registered with the Deeds Office so that the agreement becomes a matter of public record. This means that anyone entering into a contract with either you or your spouse will know that you are married out of community of property.

An ‘out of community of property’ agreement can also protect your existing finances or assets from being included in the an accrual calculation.

How the Accrual System Works

There’s an additional aspect to an ‘out of community of property’ antenuptial agreement. This is the principle of accrual – which can apply to any type of antenuptial contract. This simply means that if one spouse accrues more than the other during their marriage will share the difference between their growth, and their spouse’s when the marriage dissolves. Can we say something along the lines of: (If this confuses you, don’t be alarmed - we’re here to carefully explain this to you in our consultations with you.

There are options here, too:

  • You can stipulate the exclusion of a certain commencement value or certain assets. For example, if you own a house and get married, you can stipulate that the house is excluded from any gains you make during the marriage. Or, if you enter into marriage with a certain net worth, you can stipulate a commencement value which must be calculated first before any other gains are calculated before being divided between both parties, based on the accrual formula.
  • If you elect to marry out of community of property, and without accrual, this means that there is no sharing of the gains of the marriage between the parties. Essentially, you and your spouse remain entirely independent and there is no joint or shared gain to be split in the event of a divorce.
  • Whether you are married with or without accrual, neither party is automatically responsible for the other’s debt. This obligation can only arise by way of agreement (eg: a bond or a contract of surety).

Obviously, these are serious considerations. You should discuss this well in advance with your spouse-to-be and ensure that both of you are happy with whichever arrangement you choose. Always ensure that decisions are taken freely and without pressure. And whichever antenuptial contract you jointly decide on, it must be concluded before the marriage is entered into. If you need qualified advice, simply book a consultation with us.

Expert, Empathetic Assistance

Marriage planning can be an enormously stressful life event. Rather than leaving important details undone, it makes sense to get expert, empathetic legal guidance before you commit to the big day.

When planning your marriage – and arranging the legalities – you want an attorney who is able to answer your questions carefully and comprehensively, provide client-centred advice, and guide you through the process with as little stress as possible. At Witz Inc, we’ve built a reputation for personable, excellent service. Our legal services are designed to be cost-effective and accessible, and we welcome all engaged parties to our inclusive practice.

Getting married? Contact us today to arrange a consultation, and we’ll help you set up an antenuptial contract tailored to your exact requirements