Congratulations! The question has been asked and you said “Yes”. Someone’s getting married. So much to do and plan: book the wedding venue; choose the wedding dress; plan the procession, etc. etc. It’s all so exciting that you might forget the most important part i.e. that ever important marriage contract aka choosing the right matrimonial property regime.
There are three matrimonial property regimes that are recognised in South Africa in terms of the common law and the Matrimonial Property Act, 1984. These are:
- Marriage in community of property
- Marriage out of community of property with the inclusion of the accrual system
- Marriage out of community of property with the exclusion of the accrual system
Which one you choose will determine whether you will need to entering into an antenuptial contract (commonly referred to as an “ANC”) prior to your marriage.
MARRIAGE IN COMMUNITY OF PROPERTY
This applies automatically where parties do not conclude an ANC, either by choice, by omission, or by ignorance of the law. All assets and liabilities of spouses married in community, whether acquired before or during the marriage, fall within one joint estate.
MARRIAGE OUT OF COMMUNITY OF PROPERTY
Your ANC is one of the most important documents you will sign in your lifetime as it governs what will happen to all your assets and liabilities on death or divorce. The Ante-Nuptial Contract must be executed in front of a Notary Public prior to the marriage. The Notary Public is then obligated to register the ANC before the Registrar of Deeds at the Deeds Office within 3 months of the conclusion of your marriage.
But never fear, if you never concluded that all important Ante-Nuptial Contract, It is possible to change your matrimonial property regime from “in” to “out” of community of property by registration of a Post-nuptial Contract in terms of the Matrimonial Property Act. The effects of the contracts are the same. However, the procedure is different. The cost of drafting and execution of the Post-nuptial contract itself is generally the same as the cost of an ANC. But the High Court application can be a costly exercise. It involves legal fees, notice to the Registrar of Deeds and costs of the publishing notices in two newspapers and the Government Gazette.
Okay Lovebirds, go and get that ANC sorted out. It is strongly recommended!
Please note that this information is supplied for general information and does not constitute legal advice. It is advisable for you to contact a legal practitioner for guidance in respect of your unique requirements.