Understanding the legal consequences of your marriage

He popped the question, she said yes…and they all lived happily ever after!

While getting married can be an exciting time, it is important to remember that all your efforts should not be focused on one spectacular day, but on a lifetime of love and shared experiences. Before you get carried away on the whirlwind of preparation that will consume you for the next few months, there are some very important questions that you need to ask in order to ensure that you are in a position to make an informed decision regarding your matrimonial regime and any revisions to your will.

In South Africa, you have a choice of two matrimonial property systems that could apply to your marriage:



If you do not sign an ante nuptial contract before your wedding, you will automatically be married in community of property. This means that all your assets become part of a joint estate, in which you and your spouse will share your assets and liabilities equally. This can have serious implications in relation to your contractual capacity and can directly affect your ability to conduct business or buy and sell immovable property. You and your spouse would remain jointly and severally liable for all liabilities incurred during the marriage, which exposes all your assets to risk.



2.1.    With the exclusion of accrual

If you sign an ante nuptial contract before your wedding, you and your spouse will have separate estates and be entitled to contract freely in respect of your respective assets and liabilities. No joint estate is created and you are not responsible for your spouse's debts. On death or divorce, each party walks away with his or her own assets and liabilities

2.2.    With the application of accrual

In addition to providing for separate estates, this option provides for a division of the assets acquired during the course of the marriage, in the event of death or divorce. In short, the growth of both estates during the course of the marriage, is measured and a calculation is applied to share the difference in growth equally between you and your spouse. Thus you retain separate control of your respective estates during the course of the marriage, but you share the growth in your estates equally on dissolution.

Where you wish to be married out of community of property, an ante nuptial contract must be signed in front of a Notary Public before your marriage. Alternatively, an application can be made to the High Court to change your marital system after the marriage, however the costs involved are high, and can be prohibitive, for most newly married couples.

In addition to being informed about the legal consequences of your marriage it is also important to update your will in order to take into account your changed circumstances. It would, in particular be wise to get advice regarding:

(i) estate planning, to suit your particular circumstances and needs which may include the creation of a trust during your lifetime, and

(ii)   the effect of Capital Gains Tax , if any on you and your estate

(iii) the creation of a trust in terms of your will to provide for any minors who may inheritin terms of your will

(iv) the appointment of a guardian to your minor children.


For more information please contact Cathy Smith on 033-845 9700 or on email: cathys@jleslie.co.za



Written by:                                            Catherine Ann Smith (Director)



  • Added 27 March 2013


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