MARRIAGE LAW
Why Marriage?
Although It may sometimes be difficult to comprehend what the relevance of marriage still is in this day and age, alternatives such as life partnerships and committed relationships or mere casual relationships seem to be the norm these days.
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It would essentially seem that any kind of relationship, other than marriage, would be less cumbersome to enter into and have almost no implications or procedures, should the relationship come to an end.
Why would anyone still want to enter into the bounds of marriage? The answer is, because a marriage relationship is protected by law where all other relationships do not have such specific protection.....yet anyway.
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The same limitations and procedures that deem marriage to be more cumbersome than the alternative, also offer protection to either party in a marriage against each other and from parties outside the relationship.​
Some of these protections are:
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Various rights and benefits under law, including inheritance rights, decision-making authority in medical emergencies, as well as tax benefits.
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Legal presumptions and recognition of the parental relationship between spouses and their children. This includes rights related to custody, visitation, and child support in the event of separation or divorce.
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Married couples may enjoy certain financial benefits, such as donations between spouses, eligibility for spousal benefits under retirement plans or access to health insurance coverage through a spouse's employer.
What is an antenuptial agreement ?
We've heard it all... among others being that spouses prefer not to enter into a prenuptial agreement due to it being a pre-emption for an inevitable divorce and thus dooming the marriage before it has even started....its bad luck to enter into such an agreement.
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Well, although we can't advise anyone on what superstitions they must believe in, we can provide the facts and respective consequences and allow people to decide for themselves what they would consider to be in their best interests.
Married in Community of Property:
The baseline is that if you get married without any kind of antenuptial agreement, you will automatically be married in community of property. In this regime the community of property ( all assets and debts) of both spouses will fall into the joint communal estate and each party will therefore own and be responsible for 50% of the joint estate, once it dissolves either by death or divorce.
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This can practically become problematic when one spouse wants to take out a loan, incur debt or sign as surety, as they would need the other spouse's permission for each such transaction. Likewise, debt may be collected from either spouse, even though one spouse knew nothing about the large amount of debt their newly wedded spouse had incurred, prior to their marriage. In short.....both parties may suffer financially for the sake of not wanting to enter into a pre-nuptial agreement and no, you can't enter into a valid prenup after you are married unless you are prepared to make applications to the High Court.
Community of property without Accrual:
This regime involves the parties entering into an antenuptial agreement. This agreement stipulates that the separate estates of each party remain their own to deal with as they wish. This does not exclude them from jointly buying a house, entering into a bond together or having a joint bank account or the like. It would just mean that it doesn’t happen automatically as it would without an antenuptial contract. Debts can only be claimed against the debtor spouse without any recourse against the “innocent” spouse. The antenuptial contract must be signed before the parties get married and will thereafter be registered with the Deeds office.
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Community of property with Accrual:
This regime follows the same as the previous Community of property regime, except that parties indicate in their contract what each of their asset and liabilities are in their individual estates at start of the marriage. For the duration of the marriage, the same protections apply as those in the normal antenuptial regime. Should the marriage come to an end, the actual financial growth of each individual party since the start of the marriage gets determined and set-off against each other. The difference between the two amounts (accrual) will then be divided by two and allocated to each party’s separate estate. This contract will also need to be registered at the Deeds office.