My advice to a couple who are planning to get married is “Make some time in your hectic pre wedding preparations and get independent legal advice around what type of marriage regime will govern your marriage”. An attorney or better still, a notary public, will be able to explain the different types of marital systems, how each of them work, and most especially the pitfalls as well as the benefits of each one. Ideally a couple should consult an attorney separately from the other, but if that’s not possible, then consult jointly so that at the very least, you would go into the marriage having made an informed decision around these important issues. If your partner is unwilling to agree to the marital system of your choice, getting legal advice will provide you with vital information about what risks you face with the chosen marital system and know how best to manage it. It could also allow you to negotiate with your partner alternate ways to secure assets in your name or how best to provide protection to you and your children in the future. The reality is that this all- too important decision is often left to only one partner to make, or worse still, no consideration at all is made sometimes with disastrous consequences.
Couples who get married by ‘ANC’ (Ante-Nuptial Contract) need to go before a notary and have their ANC executed and then registered at the Deeds Office. These marriages are out-of-community of property. There are 2 types of out-of-community of property marriages, those “With” or “Without” the Accrual system. In both instances, each spouse is allowed full autonomy in conducting their affairs and neither requires the consent of the other when dealing with any form of contract. An out-of-community property with the accrual system only kicks in when the marriage ends, that is either on death or divorce. At this point all the assets accrued by the couple separ whilst married is then measured against the commencement value placed by the couple in their ANC. The spouse whose estate has grown more than the other, will then be required to share the difference with the other spouse whose estate has not grown as much. The out-of- community marriage without accrual, simply means that there will be no accruing of assets when the marriage ends.
Any marriage which is not registered by means of an ANC, will automatically default to being an “in-community-of-property” marriage. In this type of marriage system the assets of both are combined and regarded as one estate. Both spouses equally share all the risks and benefits of their joint estate. One of the dangers of an in-community-of- property marriage is that both are liable for the debts incurred by the other. In fact, if one of the spouses becomes sequestrated, it would automatically include the sequestration of the other spouse too.
I am often asked which marital system is best. However what may work for one couple may not be suited for the other. So for example the advice given to a person who elects not to pursue a career but to rather stay at home and raise a family will differ from the advice given to that person who is climbing the corporate ladder or is in business for himself or herself. In giving legal advice, a good attorney will also enquire whether either of the couple are averse to taking risks in their careers or business, their attitude to incurring debt, what their lifestyles are like and so on. For this reason it makes sense to see an attorney separately so that any awkward questions can be raised without any fear of reprisals, and where necessary, appropriate measures to protect oneself for the future, can then be put to the other spouse.
What marital system may work for one couple, may not necessarily work for another. The type of employment or career path the couple wish to pursue, the risks associated [when viewed from the perspective of creditors] with that chosen career, what assets the couple own are some of the considerations a notary public or attorney will look at and will guide you towards making the correct decision in this regard. More often than not though, both parties would want to continue to earn a separate income and jointly contribute towards the marital expenses.
Once a particular type of marital system has been decided, it cannot be undone without the court’s consent. This will come at a cost and could cause much inconvenience and perhaps even prejudice. Taking the time to ensure that you have all the necessary information so that you make an informed decision in this regard cannot be over emphasized. To ensure parity and equity between the parties, making the right decision in your choice of marital regime becomes critical. Contact Fawzia Khan and get legal advice about which marital regime would be best suited for you and let us help structure a workable outcome for you.
Know your rights! The Law Desk of Fawzia Khan & Associates. Giving You the Power of Attorney. Email fawzia@thelawdesk.co.za or call 031-5025670 for legal assistance at competitive rates.
