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Before you say I do - By Nothile Potwana (Attorney)

The shiny diamond, countless hours scrolling through bridal magazines dreaming of your perfect day - you need to pause and consider a few practicalities that will have a major impact on your happy union.

First and foremost, I hope you have sought God’s guidance on the person you want to spend the rest of your life with. I also hope you have considered pre-marital counselling which can really help open up conversations about the things you don’t really want to talk about when you are in the euphoric wedding planning frenzy. Think joint account, wills, where you spend Christmas each year, cringe! The bible states: “Therefore shall man leave his father and his mother, and shall cleave unto his wife: and they shall be one flesh." Genesis 2:24.

Marriage is a life changing decision for a variety of reasons, but here we will focus on the impact on your legal status. Choosing which matrimonial property system will govern your marriage is one of those decisions where not deciding results in a choice being made for you. When you decide on the matrimonial property regime, you should have a long term vision in mind. I know there is a perception that the only time it matters is during divorce, but nothing could be furtherer from the truth. Dissolution of marriage not only means divorce; marriage can also be dissolved (heaven forbid) by death of one spouse.

South Africa recognises three forms of matrimonial property regimes regulated by the Matrimonial Property Act 88 of 1984. 1. Marriages in community of property (“COP”); 2. Marriages out of community of property, commonly known as marriage with Ante Nuptial Contract (“ANC”); and 3. Marriages of community of property with accrual.

Marriages in COP: This is the default regime you get if you do not enter into and register an ANC This type of regime is a true reflection of ‘the two shall become one’. In the eyes of the law, spouses married in COP are a single entity. All assets and liabilities fall into the joint estate. Debt can include maintenance payable to an ex-spouse from a previous marriage and even maintenance payable to extramarital children. There are also limitations on certain transactions which cannot be performed without the other spouse’s consent like entering into credit agreements, purchasing vehicles, selling immovable property.

Marriage out of community of property: This type of matrimonial property regime has received a bad rep from religious groups in the past as it is seen as going against the biblical concept of marriage. Basically parties keep their estates separate, each one retains their own assets and liabilities. Parties wanting to be married out of community of property need to enter into and have an ante nuptial contract registered within 3 months from the date of signing it.

This had automatic application to Black south Africans who were married before to 2 December 1988 without entering into an ANC, they were deemed to be married out of COP.

Marriages out of Community of Property with Accrual: This form of matrimonial system is the same as marriage out of community of property, however parties can share in the benefit of accruals in both estates during the marriage. This is also registered by way of an ANC and has all the same benefits as the one without accrual. The term ‘accrual’ relates to the net increase in value of a spouse’s estate since the date of marriage. In other words, what was yours before the marriage remains yours, and what you have earned during the marriage belongs to both of you

Not to vilify, marriages in COP, there are downsides to other matrimonial property regimes too. Think of a couple who decide one of them will take a step back from their career or business interests to take care of the children. They will not be in a position to accumulate any wealth during the course of the marriage if they are married out of COP and would not be in a position to share in the wealth created during the marriage in the event of dissolution of the marriage.

Consider some of these examples which have left many couples wishing they had chosen differently:

(a)If a business goes insolvent, creditors can go after the assets of both parties if they are married in COP. If you have amassed a great deal of debt, your poor spouse also inherits all your debt if you marry in COP.

(b) in estate planning, some bequests can be invalid if inconsistent with the type of matrimonial property system. For example, if married in COP, you cannot bequeath the matrimonial home to your children when your spouse, has not consented. The courts cannot give effect to that bequest even if it is in your last will and testament because half of that house belongs to your spouse.

Not all is lost. You are not condemned to suffer for the rest of your life if you later realise you made the wrong choice. You and your spouse (both spouses must consent) can apply to the High court for a change in the matrimonial property system. Section 21(1) of the Matrimonial Property Act 88 of 1984 provides that spouses may apply jointly to court for consent to vary the matrimonial property system which applies to their marriage.

If the court is content that the requirements have been met, it can order that the existing matrimonial property system may no longer apply to the marriage and approve that the parties may enter into a Notarial contract by which their future matrimonial property regime will be regulated. This option does not come cheap, so choose wisely the first time around…

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