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:

 

1.       MARRIAGE IN COMMUNITY OF PROPERTY

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.       MARRIAGE OUT OF COMMUNITY OF PROPERTY

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

Articles

CARING FOR THE COMMUNITY SINCE 1921
J Leslie Smith & Co Inc responded to Reach Out's appeal for blankets by donating a large number blankets to their blanket campaign. The handover of blankets to Melanie from Reachout took place before the chilly weather set in so people could benefit and
67 Minutes – Mandela Day
Why only on this one day should we do something for 67 minutes when in fact we could make this a monthly event? The ladies, and gentlemen who wish to join in, get together on the last Friday of the month and during lunch hour sit in the boardroom and cr
Donation to SAPS at Grass Roots Level
We at J Leslie Smith & Company Inc are committed to making our contribution to the community. So when an article appeared in a local newspaper regarding the lack of lawnmowers at the Alexandra Road Police Station due to a financial crisis, our managing director, Vaugn Daly, acted quickly to swoop in and rescue the situation.