In planning one of the most special and important days of any couples’ lives, the legal implications of the chosen marital regime are ordinarily lost in the wedding preparation and excitement. This fundamental mistake can have far reaching consequences later on in the relationship.
With the Firm’s rich history and strong multi-generational relationships with Clients, we so often have the pleasure of advising and attesting to a Couple’s ANC and years later sharing our Boardroom or Library with them and their children as the next generation begins their marital journey. We take great pride in being able to offer this continuity of service and to form part of our Client’s lives.
Determining your Marital Regime:
IN COMMUNITY OF PROPERTY
Either by election or by default as a result of not entering into an ANC prior to marriage this type of marital regime sees the creation of a Joint Estate. Sharing in your partner’s assets and liabilities equally potentially places both individuals at risk as such a regime shares equally the profit and loss of partners. Insolvency, financial loss, Credit Bureau Blacklisting, Credit Applications, Debt Obligations etc are all shared equally. Marriage in Community is often the most difficult litigious pill to swallow at Divorce and dissolution of marriage as experience dictates one party often stands to lose far more and be far more heavily impacted.
Furthermore, on the death of one spouse, the Estate of both is wound up at the same time, leading to considerable inconvenience and unnecessary expense.
OUT OF COMMUNITY OF PROPERTY WITH THE ACCRUAL SYSTEM
The accrual system recognises that marriage is not only a partnership of persons but also one of finances and brings about a deferred sharing of the wealth accumulated by marriage partners without necessarily having regard to their respective actual financials contributions. For example, it recognises that the contribution of a non-working home-maker is every bit the equal of the working spouse.
There are infinite variations permissible within the ambit of this regime and it is vital that extremely careful consideration be given to the correct structuring of a marriage within this system because of the long-term ramifications from Estate Planning and other perspectives.
OUT OF COMMUNITY OF PROPERTY WITHOUT THE ACCRUAL SYSTEM
Colloquially this is referred or understood to be the “what’s yours is yours and what’s mine is mine” regime, which is the way it was with all Antenuptial Contracts prior to 1984. Marriage under this regime still has its place and is appropriate particularly in the case of second marriages and where couples have considerable and separate commercial interests.
As with all life-changing events and moments, we urge newlyweds and those about to marry to update their Wills. During the course of advising on the various marital regimes we offer our Clients the complementary service of Will drafting and preparation at no cost.