Till death do us part?

2012-07-21 10:30

It’s the happiest day of your life, but make sure you understand your marriage contract.

In community of property
This marriage contract means ‘what’s mine is yours and what’s yours is mine’, as both partners’ separate estates become one.

Should your spouse have debt, you automatically become liable for half of it. Similarly, in the event of a divorce, both of your assets and liabilities will be split 50/50.

‘This is the default position for marriages in South Africa and will apply if couples do not sign an antenuptial agreement,’ says Donovan Cooper of MA Cooper Attorneys, a consulting firm for Lawyers Online.

Out of community of property: without accrual
What’s yours is yours.

You do not share in what your spouse owns or owes, even in the event of a divorce.

This, however, does not affect the right of either spouse to claim maintenance from the other, if appropriate. This is a very useful marriage contract if you or your partner are involved in a business.

Should it fail, your spouse will not be liable for any of the financial loss. On death, the deceased’s estate is dealt with according to their will.

Marriage out of community of property:with accrual
The spouse whose estate grew the most during the marriage agrees to make a contribution to the other when the marriage ends.

At the beginning of the marriage, each partner states the value of their estate. ‘For young couples, this value is often zero,’ says Ronald Bobroff, senior director at Ronald Bo-broff & Partners Inc.

‘At the end of the marriage, the spouses again calculate the value of each of their estates to see which has grown more, ignoring any assets or liabilities that were specifically excluded before they got married.’

Married in terms of foreign law
Getting hitched on the white beaches of a tropical island sounds romantic – but remember that your marriage contract will be recognised by the laws of that country and must comply with them.

‘Where the validity of a foreign marriage is to be decided in a South African court, the general principle is that the validity of such a marriage is decided according to the law of the country in which the marriage takes place,’ says Ronald.

Married in terms of religious law – Muslim rites
‘Muslim rites marriages remain unrecognised under South African law, meaning that the parties are treated as being unmarried.

While the rights enjoyed by couples married under Muslim rites are being expanded by the courts, couples should take legal advice to find out what their options are if they want the legal protection of a recognised marriage,’ says Donovan.

South Africa’s Pension Funds Adjudicator now recognises the right of a spouse, married and divorced in accordance with Muslim custom, to be entitled to a share of his or her partner’s pension.

A Muslim widow or widower also has a right to be recognised as a spouse in terms of the Intestate Succession Act, whereby widows or widowers of Muslim marriages have the right to claim or inherit from estates where the deceased died without leaving a will.

Same-sex marriages
Same-sex marriages are recognised under South African law. ‘All the legal rights and obligations are those of a marriage concluded under the Marriage Act, including rights and obligations on divorce.

This also applies to civil partnerships concluded under the Civil Union Act,’ Donovan explains. Spouses can only keep their assets and liabilities separate if they sign an antenuptial agreement, otherwise their union will be seen as being in community of property.

What is an antenuptial agreement?
This is a contract entered into before marriage. It sets out what should happen to your money and property if you get divorced.

» Getting hitched on a tropical island sounds romantic – but your marriage contract will be recognised by the laws of that country and must comply with them.

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