The sustainability of a marriage depends to some extent on the consensus reached by a couple before the marriage, regarding the matrimonial property system to govern their marriage.
However, since this is so pivotal to a couple’s future together, how can newly-weds be expected to envisage circumstances that would warrant such careful consideration and planning, and still make sensible decisions, if they had never been exposed to any of it?
Part of the answer lies in this quote by Robert C Dodds: “The goal in marriage is not to think alike, but to think together”.
Since prospective spouses have to decide together what the consequences of the various systems will mean for them, it is crucial for anyone contemplating a wedding to consider obtaining professional guidance before making some of the most critical decisions, sometimes with irreversible long-term consequences.
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Marriage Contracts in South Africa
There are three types of matrimonial property systems in South Africa from which pre-weds can choose. These are marriages in community of property, marriages out of community of property, which are subject to the accrual system, and marriages out of community of property, excluding accrual. This is a choice that should not be made lightly as the each of the systems has different financial implications for a couple’s estate. The different types of marriage contracts relating to each matrimonial property system are summarised below.
Marriage in community of property
All marriages which are not governed by an ante nuptial contract are automatically in community of property. This system radically changes the spouses’ status and their power to manage their estates. The separate estates of the husband and wife combine to form a joint estate in which each spouse has an equal right and over which they share equal power. The estate is now the joint property of both spouses and when a spouse wishes to exercise certain juristic acts or to commence certain legal proceedings against a third party, he or she has to obtain the written consent of the other spouse. A spouse married in community of property can, in any event, not institute legal proceedings against the other spouse for patrimonial loss. The implications of being married in community of property should therefore be considered carefully as creditors can seize all the assets of the joint estate in the case of insolvency of either of the spouses.
Marriage out of community of property subject to the accrual system
To be married out of community of property the spouses enter into an antenuptial agreement which is to be concluded before the marriage. The accrual system automatically applies to all marriages unless clearly excluded in an antenuptial contract in South Africa. A marriage governed by the accrual system is, for all intents and purposes, a normal marriage out of community of property. The spouses keep their estates separate and have the same rights and powers over their own estates as before the marriage. The accrual only comes into play at the dissolution of the marriage by death or divorce. When a marriage is ended, the growth of both estates, since the conclusion of the marriage and the dissolution thereof, is compared. The spouse whose estate has experienced no growth or the least growth is entitled to a claim for an amount equal to half of the difference between the growth of the respective estates of the spouses. It is also possible for spouses to exclude certain inheritances, legacies and donations from the accrual, which will then not be taken into account when the growth of the estates is determined. An antenuptial contract with accrual is ideal for spouses whose estates are more or less the same size before marriage and it is estimated that one of the spouse’s estates will grow and the other spouse’s estate will remain roughly the same during the marriage.
Marriage out of community of property without the accrual system
An antenuptial contract is essential if the spouses opt for this system to govern their marriage and, as already mentioned, the working of the accrual system should be specifically excluded therein. This system entails that each spouse keeps his or her own estate. The powers and rights he or she had with regard to his or her estate before marriage, remains the same during and after marriage. When the marriage is dissolved, by death or divorce, each spouse keeps his estate and the growth it has undergone. There is, however an exception: if the spouses had agreed – in the marriage contract, will or any other agreement – that a spouse is entitled to certain property, he or she would receive it when the marriage ends. A marriage out of community of property without the accrual system is a good option for spouses with large estates and / or where it is estimated that both of the spouses’ estates will experience growth during the marriage or stay more or less the same.
Can the marriage system be changed after the marriage?
The spouses may jointly apply to a court for leave to change the matrimonial property system which applies to their marriage only if there are sound reasons for the proposed change, if sufficient notice has been given to all the creditors of the spouses and if no other person will be prejudiced by the proposed change. Considering the relatively high costs of such an application and the burden of proof which rests on the couple, it is advisable to carefully consider all the options before choosing the system which will best suit both spouses’ future needs.
The different types of marriages in South Africa
In South Africa, there are mainly three types of unions, i.e. the civil marriage, a civil union and a customary marriage. Both civil marriages and unions stick to the above explanations regarding matrimonial property. A customary marriage entered into before the commencement of the Customary Marriages Act, 102 of 1988 continues to be governed by customary law. A customary marriage entered into after the commencement of the Act is a marriage in community of property and of profit and loss, unless, of course, these consequences are specifically excluded by the spouses in an antenuptial contract.
No one likes to consider the end of a marriage (whether by death or divorce), especially when the wedding has not even taken place yet, but it is a factor which has to be considered when deciding which marriage property system will best suit both parties. Since marriage is, essentially, a contract anyway, the value of an antenuptial contract is appreciated by many sensible couples wanting to ensure that the terms thereof would best meet their future needs.
~ Natasha van Greuning (LLB)
Discussing your unique circumstances with an expert would not only simplify the marriage but would also provide a solid foundation for the future.
In South Africa, a civil marriage is, by default, a marriage in community of property. To marry out of community of property, an ante-nuptial contract needs to be signed by the spouses in the presence of two witnesses and attested by a notary public.