December 8, 2016
“A good wife always forgives her husband when she’s wrong” (Rodney Dangerfield)
With Wedding Season in full swing, here’s a timely reminder – take legal advice on choosing one of the three “marital regimes” available to you in our law before you actually tie the knot.
That’s important because if you don’t specify otherwise in a pre-marriage ANC (antenuptial contract), you will automatically be married in community of property. Which, as we discuss below, may well be a poor choice for you. And although you can usually change your regime after marriage it’s a lot easier and cheaper to get it right up front.
Your 3 choices
- Marriage in community of property: This is the default regime that will apply if you don’t specify otherwise in your ANC. With only a few exceptions, everything you own, everything you owe, and everything you accrue while married fall into one “joint estate”. Your spouse must consent in writing to certain transactions. On divorce or death your joint estate will usually be split equally between you, regardless of what each of you contributed to the marriage. And if one of you runs up debts or gets into financial difficulties, it is the joint estate that must pay and may be sequestrated – you could lose everything.
- Marriage out of community of property without the accrual system: Your own assets and liabilities, both what you bring in and what you accrue during the marriage, remain yours, and yours alone, to do with as you wish. You aren’t liable for your spouse’s separate debts and if your spouse’s estate is sequestrated your separate assets will be released to you (against proof that they are indeed yours). This may be the right choice for you, but be aware that without accrual the poorer spouse (usually a spouse whose contribution to the marriage was more on the home-making side rather than financial) risks being left destitute after many years of marriage.
- Marriage out of community of property with the accrual system: As with the previous option, your own assets and liabilities remain yours and under your sole control, and you can protect your assets from your spouse’s creditors. On divorce or death however, with only a few exceptions you share equally in the “accrual” (growth) of your estate. Although this is a fair and popular option for modern marriages, it is not necessarily the best choice for your particular circumstances, and proper advice is essential.
You have some important decisions to make. All three choices have their own advantages and disadvantages, what is set out above is of necessity just a general summary of your choices, and whichever regime you opt for you should ask your lawyer to tailor your ANC to suit your particular circumstances. So don’t leave it to the last minute!