GETTING MARRIED?
What YOU need to know
BRIEF BACKGROUND
If you get married without going to an Attorney’s office to have an antenuptial contract drawn up, executed (signed) and registered you will be automatically married in community of property.
This will mean that your assets and your spouse’s assets will be shared, as will your liabilities and your spouses’ liabilities. You and your spouse will have one joint estate together and jointly own all assets acquired before and during the marriage as well as be jointly liable for debts incurred by each one of you before and during the marriage.
Being married in community of property exposes both you and your spouse to risk as it allows joint assets to be attached and sold in the event of sale in execution as a result of debt. It also poses an administrative burden as many acts will require that you and your spouse will need to consent to each other’s transactions as you are not dealing only with your own assets but with the joint assets. The saying “what’s mine is yours” is exactly what will apply to your marriage.
By entering into an antenuptial contract you are able to exclude community of property and community of loss and are able to ensure you and your spouse are married out of community of property. You can elect to either be married out of community of property with the inclusion of the accrual system (which is the default when one is married out of community of property) or out of community of property without the accrual. Being married out of community of property allows you and your spouse to remain completely independent of each other and allows each of you the freedom to retain your sole ownership in your assets and remain solely responsibility for your debts (which is the position you are in now before you are married). The inclusion of the accrual allows you and your spouse these same benefits as well as a partial sharing of assets between you and your spouse’s estate which will take place on dissolution of the marriage (which is either on death or divorce). 2
IMPORTANT INFORMATION
– An antenuptial contract (whether it includes the accrual system or not) MUST be signed by you and your fiancé before the date of your marriage
– It must be signed by you and your fiancé before a Notary Public or you must sign a Power of Attorney authorising an agent to sign on your and your fiancé’s behalf before the Notary Public
– It must be registered within 3 months from the date on which it is signed before the Notary Public but this is up to the attorney to arrange
– If you do not enter into an antenuptial contract before the date of your marriage you will be automatically married in community of property and you will not be able to enter into an antenuptial contract to change your marital system to married out of community of property. The only way to change your marital system will be by making an application to the High Court which is extremely costly and could be refused by the Judge at his/her discretion after all the costs have been incurred.
WHAT IS REQUIRED?
– You and your fiancé will need to furnish us with a copy of your identity documents and if you have been previously married, with a copy of any relevant divorce orders and death certificates relating to previous spouses
– You and your fiancé will need to come in for a consultation and bring in the originals of your documents so supplied
WHAT TO DO NOW?
– Make an appointment to come and see us for a consultation where the three matrimonial property systems (in community of property, out of community of property and out of community of property with the accrual) will be explained to you and your fiancé in detail. We will look at your circumstances and advise you which matrimonial system will best suit your needs.
– Ensure that you contact us before the date of your marriage