Getting married and planning a wedding is one of the most important days in a person’s life. The focus tends to be on the venue, flowers, the perfect dress and which song to dance to as husband and wife. All too often, people overlook the legal aspects of getting married and the potential ramifications.
In South African law, there are two marital regimes: in community of property and out of community of property with or without accrual.
Should you not enter into an Ante-nuptial Contract (ANC) before your date of marriage, you will automatically be married in community of property. Practically, this means that from the date of marriage your estates are one. In other words, you share both your assets and your liabilities. Therefore, should one spouse default on a debt, the debtor can act against both spouses.
Alternatively, should you enter into an ANC before your date of marriage, you will be married out of community of property, either with or without accrual. Should you choose out of community without accrual, your estates will remain completely separate. In other words, each spouse’s assets and liabilities remain solely their own. However, should you opt for out of community with accrual, your estates will remain separate during the course of the marriage. It will only be on dissolution of the marriage that assets accumulated during the marriage will be shared. In addition, when entering into the ANC, each spouse can specifically exclude assets obtained prior to marriage that will then remain part of their individual estates.
It is important to bear in mind that should you get married in community of property and later decide that you would prefer to change your matrimonial property regime to one out of community, you can do so but it involves a High Court Application that is both expensive and not guaranteed to be successful.