What type of marriage contract is best for you?


So according to Harper’s Bazaar, Prince Harry is reportedly not making any plans to sign any prenuptial agreements with fiancée, Meghan Markle.

A source and close friend of the Prince reportedly told the Daily Mail that Harry is in it for the long haul and is determined to make his marriage a lasting one and as such, won’t be signing any prenups.

If this is indeed true, then he would be following in his older brother’s footsteps as William, Duke of Cambridge, also chose to forgo the option of drawing up a prenup when he tied the knot with Kate.

It truly seems to me that these royals are romantics at heart and while we definitely wish and hope the best for them, unfortunately marriages don’t always end in happily ever after.

READ MORE: Why it's time to say "I do" to wedding insurance

This got us to thinking about marriage and prenup contracts.

Here’s the thing - you’re hopefully going to be married for the rest of your life so before you even get down to the fun part of your big day, one of the best and most sensible things you need to do is discuss the type of marriage you want to head on into.

Since you’ll be sharing assets, there will also be instances where you cannot act independently when making a decision regarding the estate without the consent of your spouse.

So how do you decide works best for you as a couple? And what happens if you’re getting married in terms of the customary marriages act?

Let’s take a look at the options:

Marriage in community of property

This is one of the most popular marriage contracts and according to divorcelaws.co.za, it’s also the cheapest. 

When you’re married in community of property, you and your partner are joint owners of any estate or assets accrued once you’re married.

If you don’t enter any form of antenuptial contract (ANC) prior to getting married, then this will be the default contract you’ll be entering in.

Unfortunately with this option, there are a few risky conditions, the two main ones being as follows:

  • If one of you in the household cannot pay any debts he or she has incurred, both of you will share share the responsibility for any losses that can result in this. As Louwrenskoen attorneys state: creditors will have the right to lay claim to assets that you both share.

  • According to Grayston Legal, since you’ll be sharing assets, there will also be instances where you cannot act independently when making a decision regarding the estate without the consent of your spouse.

WATCH: Antenuptial contracts in South Africa

A marriage out of community of property, without accrual

There seems to be a running joke that planning to get married with this set up is basically planning for when you’re getting divorced.

Given the abovementioned set of disadvantages it’s not hard to see why many couples want the option of protection in the event that things simply won’t work out.

In this type of marriage, you’ll be setting up an ANC, which is a contract that lays down the rules and guidelines regarding the splitting of your assets in the event of divorce.

READ MORE: Is eloping the best option for you?

To put it in simple terms, this contract usually stipulates that what’s yours is yours and what belongs to your partner is your partner’s alone. This includes what was brought into the marriage and anything that’s accumulated during the marriage.

The biggest pros for this kind of marriage include:

  • financial independence and complete ownership of the assets you brought into your marriage
  • your partner’s debt is his/her own to manage

A marriage out of community of property with the accrual system

With this type of contract, assets that are accumulated during your marriage are jointly owned. For many people, this is an ideal option because, according to divorcelaws.co.za, it offers both spouses the opportunity to gain a fair share of assets once their marriage ends in dissolution.

When you’re setting up your ANC, any assets that you and your partner have owned prior to getting married can be excluded in the accrual. Anything you’ve earned during your marriage must be shared equally when the marriage ends.

Many legal experts also advise you to declare the value of your assets upon entering the marriage (this is also known as commencement value) so that the accrual at the dissolution of your marriage can be then calculated and established.

The biggest potential pitfall is with this is that the financially stronger spouse often has to share his or her earnings/profits made during the marriage.

If you’re married with the accrual system you are also not entitled to the following:

  • Any inheritance received from an outside party
  • Any donation between you and your spouse
  • All agreed upon assets that were excluded from the terms of the ANC

But how does it work when it comes to traditional marriages, which fall under the Customary Marriage Act?

We spoke to Mpho Mathepe, candidate attorney at Theron & Theron who works in the matrimonial litigation department:
Here’s what you need to know

  • When two parties want to get married, they need to register their marriage within a period of 12 months.

  • That marriage requires that the parties entering the marriage must be 18 years or older and that they must both consent to being married according to the terms of the customary law act.

  • In terms of customary law, the marriage is also usually in community of property, unless the parties concerned want to add an antenuptial contract.

  • The marriage will then have to be negotiated in terms of customary laws, which means that both families should sit down and talk lobola negotiations.

The marriage won't be considered valid if it doesn't involve the following:

  • Proof of lobola negotiations and payment
  • The handover of the bride
  • Photographic evidence of the traditional ceremony
  • Confirmation affidavits from witnesses at the ceremony

But, what happens when one of the partners wants to add a third person to the marriage?

An application must be made to the court in terms of law and within that application, the husband needs to state and declare that he already has a first wife and that he wants a second one.

He must also state in his application that the first wife’s share of the marriage contribution is protected - and he must state what assets are being protected. For example, if it's a car - what type of car is it, and how much is it worth.

This paper is basically to ensure that the first wife's assets are protected in the event of divorce. And it's also a way of letting the second wife know what exactly the first wife is entitled to.

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Voting Booth
Do you think it's important to get married in this day and age?
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Yes, it's important in order to create a family unit and for companionship
28% - 5 votes
Not at all. Being single is far more liberating
6% - 1 votes
There is no general answer to this, it's each to their own
50% - 9 votes
Yes, society still frowns on unmarried people, especially women
0% - 0 votes
It depends on whether you are able to find a compatible partner
17% - 3 votes