"Plan" to be happily married

Marriage is a commitment that binds two people together and is considered one of the most difficult relationships to maintain, and should be carefully thought out. Just because you’re in love, doesn’t mean your marriage will be without difficulties and sometimes these difficulties can cause major problems, it is for this reason that all aspects of marriage must be planned, even the negative connotations such as divorce.

Divorce procedures are expensive and so before you get married, you and your partner should sign an Ante Nuptial Contract (ANC) that sets out the way the possessions will be divided if there is a divorce.

There are two legal options, known as matrimonial property regimes available in South Africa:

• Marriage in community of property

• Marriage out of community of property by way of an Ante Nuptial Contract with accrual or without accrual.

If you get married without signing an ANC, then you automatically fall into the first category, married in community of property. This among other things means that both husband and wife have to consent when one of them wants to purchase property, whenever a suretyship and credit agreements are entered into, etc.

When the marriage comes to an end, either by death or divorce, spouses are entitled to half of the joint estate, but all debt is shared equally also.

When you get married Out of Community of Property you can do so with or without the accrual system applying. In this case, the possession of each individual remains theirs, for example if the husband bought a bed on credit, the bed is his even if the couple split.

Each spouse’s assets and property remains under their own control, if these increase or decrease in value, that individual will win or lose. It stands to reason therefore that all assets and liabilities remain with the spouse that acquired or incurred it as the case may be.

If the accrual system is included in the ANC, then when the marriage comes to an end, the increase of the value of the individual estates is compared to each other. The spouse with the greater growth, then shares with the other spouse a part of that growth as set out in the ANC.

The ANC may exclude certain possessions brought into the marriage, or set out a portion of the value from being subject to the accrual system. This allows each partner to keep ownership of their respective assets, sharing in increases while not being responsible for the debt of the other spouse. It is also the most widely recommended form of regulating your affairs when contemplating marriage.

In all marriages out of Community of Property, the Ante Nuptial Contract must be signed before getting married. The contract is signed before a Notary Public, who will register the contract at the Deed’s Office, usually for a fee of about R1000.

This is an important part of any marriage so while you and your partner discuss colours, décor, bridesmaids and best men, don’t forget to find out about the legal issues surrounding marriage.

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