First comes love, then comes… contracts?

First comes love, then comes… contracts?
04 Jun 2021

Introduction

Planning a wedding and fantasising about your future with your significant other is a combination of stress, nerves and excitement. Yet couples often forget that there are serious decisions that need to be made such as the matrimonial property regime that they will be married under. There are three types of matrimonial property regimes that couples may choose from and it is always best to seek the appropriate legal advice that will guide you in making the most informed decision for your own set of circumstances.

In or out of community of property

Marriage in community of property is by default entered into where parties wed without having entered into an antenuptial contract. Spouses married in community of property thus become one in that their assets and liabilities both before and accrued during marriage, become part of their joint estate. One may therefore be held liable for the debts of the other and likewise one may lay claim to the assets of the other by mere virtue of having been married in community of property. Widows are often left with a substantial amount of debt that they need to pay off, despite not having incurred the debts themselves. Additionally, there are many instances where spousal consent is required in order to transact, such as when making bank transactions or buying and selling property as well as assets that belong to the joint estate.

So how can you protect your assets and safeguard your spouse from your liabilities should something unforeseen happen? The best way to do so is to opt for a marriage out of community of property. When electing this regime, couples are faced with a further decision to make, whether the marriage should be out of community with accrual or without accrual.

A marriage out of community with the inclusion of accrual is entered into when parties concluded an antenuptial contract. This matrimonial property regime allows each spouse to enjoy the profits of the other that were accrued during the subsistence of the marriage to the extent that the specific asset is not excluded in the antenuptial contract. However, while the liabilities of the couple are kept separate and do not accrue to the other spouse, they are taken into account in the event of divorce or if one of parties pass away. Should parties wish to enter into this matrimonial property regime after the conclusion of the marriage, they may do so by concluding a post-nuptial contract and making an application to court.

The matrimonial property regime that has become more common is a marriage out of community of property with the exclusion of accrual. Couples opting for this system essentially keep their estates separate. Thus upon dissolution of the marriage the parties will leave with what they came into the marriage with and what accrued to their individual estate only. The benefits of this system are significant and include aspects such as the freedom to enter into any transaction, with no potential consequences for the other spouse. Thus if a spouse is sequestrated or placed under debt review, there will be no legal ramifications for the spouse.

But this system does not come without disadvantages. Often estranged spouses are tangled in a messy divorce and one of the parties may claim that he/she is entitled to the accrual as he/she looked after the family home. It is important to note that in this instance the parties are not entitled to the accrual as they had opted for the exclusion of accrual at the commencement of the marriage. However, a spouse may attempt to claim maintenance in the divorce settlement. Additionally, you have to think about the future and how you as a couple will navigate big decisions such as purchasing your family home and setting up a safety net for your family. Should something happen, how will you divide these assets if your assets and liabilities have always been kept separate?

Conclusion

Navigating your way through a decision that will govern your marriage and all the effects thereof is no easy task. At SchoemanLaw, we are able to often our legal services from start to finish. Our experienced attorneys will be able to guide you through the various options available and help you make a decision that is best suited for both you and your future spouse. For further enquiries or to set up a consultation, contact us directly on Whatsapp on +27716870378.

See also:

(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)
Gabriella Keeble
Gabriella Keeble

Gabriella Keeble completed her LLB at the University of the Western Cape. Gabriella joined a boutique commercial and insolvency firm in February 2019 as a Candidate Attorney. She gained extensive... Read more about Gabriella Keeble

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