Before you get carried away with all the details that will consume you for the next few months, there are some important questions that you need to ask to ensure that you are making an informed decision regarding your matrimonial regime.

There are two matrimonial property systems that could apply to your marriage in South Africa:

Marriage in community of property

If you do not sign an antenuptial contract before your wedding, you will automatically be married in community of property. All your assets become part of a joint estate, in which you and your spouse will share assets and liabilities equally. This 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 antenuptial 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 sharing of the assets acquired during the course of the marriage, in the event of death or divorce. 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. You retain separate control of your respective estates, during the course of the marriage, but you share equally in the growth of your estates on dissolution.

If you would like to be married out of community of property, you must sign an antenuptial contract 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.

J. Leslie Smith & Co Attorneys