Protect yourself in marriage

2013-09-24 00:00

MY best friend phoned me the other day in a flat spin because she is about to get married and she has just discovered that her fiancé is over-indebted. The question posed was how one protects one’s assets from the creditors of one’s future spouse.

I explained as follows: there are three marital regimes according to our matrimonial law.

The first marital regime: in community of property. When one gets married in community of property there is one estate. If you get divorced, each party gets 50% of the estate.

The second marital regime: out of community of property with accrual. When you get married this way there are two separate estates. However, when you get divorced, the accrual is calculated. The accrual is calculated as follows: A’s estate has an initial value of R100 000 and B’s estate has an initial value of R200 000. At the dissolution of the marriage, A’s estate is valued at R400 000 and B’s estate at R300 000. This means that A’s estate has accrued by R300 000 (400 000 less 100 000) and B’s estate by R100 000 (300 000 less 200 000). The difference between the two accruals is R200 000 (300 000 less 100 000). The estate with the higher accrual, A, must then pay half the difference, R100 000 (200 000/2), to the estate with the lesser accrual, B. The net effect will then be that both A and B’s estates will have increased by R200 000. So both parties’ accruals are now equal.

The third marital regime: out of community of property without accrual. When you get divorced each party leaves the marriage with what they brought in.

In order to ensure that creditors are unable to attack or attach my best friend’s assets, I advised her to consider getting married only according to the second and third marital regimes described above.

In the words of James C. Dobson: “Don’t marry the person you think you can live with; marry only the individual you think you can’t live without.”

• Serisha Mewa is a professional assistant to Claudia Garella, founder of Garella Attorneys, which specialises in the practice of law.

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