From the exciting start of a romantic proposal, to the whirlwind of preparation in the run up to your dream wedding day, there are so many details to take care of! Before you get carried away with the myriad of details that will consume you for the next few months, there are some very important questions that you need to ask in order to ensure that you are making an informed decision regarding your matrimonial regime and any revisions to your will.
There are two matrimonial property systems that could apply to your marriage in South Africa:
Marriage in community of property
You will automatically be married in community of property, if you do not sign an ante nuptial contract before your wedding. All your assets become part of a joint estate, in which you and your spouse will share assets and liabilities equally. This can have serious implications regarding your contractual capacity and can directly affect your ability to conduct business or buy and sell immovable property. As a couple, you and your spouse would remain jointly and severally liable for all liabilities incurred during the marriage, which will expose all your assets to risk.
Marriage out of community of property
With the exclusion of accrual
By signing an ante nuptial contract before your wedding, you and your spouse will have separate estates and be entitled to contract freely in respect of your respective assets and liabilities. No joint estate is created and you are not responsible for your spouse’s debts. On death or divorce, each party walks away with his or her own assets and liabilities.
With the application of accrual
In addition to providing for separate estates, this option provides for a division of the assets acquired during the course of the marriage, in the event of death or divorce. In short, the growth of both estates during the course of the marriage is measured and a calculation is applied to share the difference in growth equally between you and your spouse. Thus you retain separate control of your respective estates during the course of the marriage, but you share the growth in your estates equally on dissolution.
If you would like to be married out of community of property, an ante nuptial contract must be signed in front of a Notary Public before your marriage. Alternatively, an application can be made to the High Court to change your marital system after the marriage, however the costs involved are high, and can be prohibitive for most newly married couples.
In addition to being informed about the legal consequences of your marriage, it is also important to update your will, to take into account your changed circumstances. It would, in particular, be wise to get advice regarding:
- estate planning, to suit your particular circumstances and needs which may include the creation of a trust during your lifetime, and
- the effect of Capital Gains Tax , if any on you and your estate
- the creation of a trust in terms of your will to provide for any minors who may inherit in terms of your will
- the appointment of a guardian to your minor children.
Remember, marriage is journey …don’t leave your destination to chance!
Written by Cathy Smith
J Leslie Smith & Company Inc