Types of marriage contracts

There are a lot of decisions involved in getting married. Not just about the outfits, the guest list or the venue, but also whether you’ll get married in or out of community of property. In South Africa, the way you get married will influence your finances during, and, in the case of divorce or death, after the marriage. So, here are some things to consider before tying the knot.

Marriage in community of property

This is the most common way to get married in South Africa. It’s what happens if you don’t have an antenuptial contract and it doesn’t involve any extra fees. This includes monogamous customary marriages where there isn’t an antenuptial contract.

If you’re married in community of property, all your assets (house, business, income, savings etc), as well as all your debts/liabilities (loans, finance agreements, debt etc), whether before or after the marriage, are legally joint. Both the husband’s assets and wife’s assets belong to both spouses equally, and similarly they have equal responsibility for either spouse’s debts.

This means that you need permission from your spouse to enter into a credit agreement, because you will both be responsible for that debt in the long term. Also, if one spouse needs to go under debt review, both spouses need to apply jointly, whether both or only one of them is over-indebted.

Marriage out of community of property

To get married out of community of property you need an antenuptial contract so that you and your spouse are seen as separate legal entities. This requires a lawyer so there are costs involved.

There are two types of antenuptial contracts:

  • Antenuptial Contract without accrual
    The assets you acquired before or during the marriage remain separate.
  • Antenuptial Contract with accrual
    Before the marriage, you and your partner state the value of your respective assets, and after getting married any assets are shared between you according to the antenuptial contract.

So, how you get married can have a massive impact on your financial wellness in the future. It’s important to make clear-eyed, sensible decisions, regardless of how much you love your future spouse. Take the time to have this discussion – the decision you make is extremely important.

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