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For richer or poorer, your mutual finances matter as much as your vows.
Divorce may be the last thing on your mind when you’re getting married, but it’s important to be prepared. More than a romantic notion, marriage is a legal act that combines your possessions – and your everyday lives – until death or divorce do you part.
Having an antenuptial contract (ANC) can make all the difference between an amicable split and a messy mud-slinging match. How do these contracts work and what are your legal options?
Marriage in South Africa is governed by the Marriage Act of 1961, explains lawyer and marriage officer, Eitan Stern. “Under the original Act, there was one mechanism for marriage, which was ‘in community of property’.”
If you get married in community of property, you and your partner become one joint financial estate in the eyes of the law.
If you want to buy a house or a car, or enter into any kind of contract, both parties will have to sign the document because you are seen as one party. “This is not just old-fashioned, but also a very inconvenient way to live in the modern world,” says Stern.
The out of community option
A lot has changed since the Marriage Act was drawn up. As women became more independent, the act was amended to introduce a new option: out of community of property.
This means that you remain two separate people in the eyes of the law. “Financially you are two separate estates, which is what most people would want nowadays,” explains Stern.
So you can either get married in community of property, merging both of your estates, or you can get married out of community of property and stay separate. But there is one more consideration.
The option of accrual
You can opt to have an accrual, which means: “what’s mine is mine and what’s yours is yours. We are separate people coming into the marriage, but anything we accrue within the marriage will be split in half, or co-owned.”
Why do this instead of retaining your own assets? “Because if you have kids and the one party gives up his or her career to raise a family, the accrual will ensure that both partners are protected if the marriage ends in divorce,” says Stern.
When two people get divorced with an accrual, a formula gets put into play. “You look at what each of you were worth at the start of the marriage, you look at what you’re both worth at the end of the marriage, and you essentially split the difference.”
What if you have an investment apartment or a beloved sportscar that you don’t want to lose? When you draw up an ANC, you can stipulate certain exclusions.
These are the things you don’t want to include in the accrual formula, no matter what happens.
Gifts and inheritances are automatically excluded, but anything else must be stipulated. It’s worth taking the time to consider your assets and what you’d like to do with them.
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Stern recommends taking time to consider, discuss and draw up your ANC, rather than leaving it to the weekend before the wedding.
If you do nothing before you get married, you are automatically married in community of property.
You cannot change the status of your marriage afterwards, unless you file a high court application. “This is complicated and expensive,” Stern cautions.
“People spend more time planning the flowers at the wedding than they do on what happens financially once they’re married, and if they get divorced,” he says.
“Don’t be foolish. Spend time reading up on your options, sit with a lawyer and ask them to explain it to you. Have a conversation with your partner about what your intentions are for your lives.”
Discuss whether you want to have children, discuss where you want to live, and discuss your financial expectations. A little preparation can save a lot of pain in the long run.
- This article first appeared on the Change Exchange, an online platform by BrightRock, provider of the first-ever life insurance that changes as your life changes. The opinions expressed in this piece are the writer’s own and don’t necessarily reflect the views of BrightRock.
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