One of the hardest decisions a couple makes while dating is taking it to the next step. Couples are usually faced with the hard question of which marriage contract type they should go for? With almost one in five marriages ending in divorce in South Africa, it is advisable for spouses to consider their options in order to make informed decisions.
The South African law provides a variety of marriage contract types that couples can consider. Additionally, factors such as financial circumstances, future plans, and family dynamics can all influence the decision-making process. Therefore, it is important for couples to understand each of the marriage contract types in detail, in order to make choices that best suit their needs and aspirations for their union.
Customary Marriage
Customary Marriages Act of 1998 of the South African law recognizes these types of marriage contract types and they are celebrated according to customary traditions and practices. This type of marriage differs from culture to culture and it depends on traditional laws and customs of both parties intending to get married. It is important for couples entering into customary marriages to clarify their marital regime to avoid misunderstandings regarding property rights and obligations.
Civil Marriage
Civil marriages provide couples with the liberty to choose their marital regime including in community of property. This type of marriage contract is also recognized by The South African Law and both parties exercise the same level of rights and responsibilities. Civil marriages are conducted in accordance with the Marriage Act of 1961 and are officiated by a marriage officer at either a church or a registry office.
Antenuptial Contract with Accrual
An antenuptial contract is a popular choice for couples who wish to maintain separate estates. By signing an antenuptial contract, each spouse retains ownership of their assets and liabilities acquired before and during the marriage. However, they can still include an accrual system, which ensures that assets accumulated during the marriage are shared in the event of divorce or death. This marriage contract type offers a balance between independence and financial protection. It offers protection to each party’s assets and limits their liability for each other’s debts.
Antenuptial Contract without Accrual
Similar to the antenuptial contract with accrual, these marriage contract types allow couples to maintain separate estates throughout their marriage. However, there is no sharing of assets accumulated during the marriage, even after marriage. Each spouse retains what they own, regardless of the time the union has lasted. However, this union may not be suitable for couples seeking mutual growth and sharing of resources.
Marriage in Community of Property
This marriage contract type merges all assets and liabilities of both spouses into a single estate upon marriage unless an antenuptial contract is entered into before marriage. While this simplifies financial matters, it also means that both parties are equally liable for debts incurred by either spouse during marriage. In-community-of-property is the default marriage regime for civil marriages in South Africa. This means that if you don’t sign an antenuptial contract with an attorney before marriage, you will be married in community of property
Marriage out of Community of Property
Out-of-community-of-property marriage contract types are the opposite of in-community-of-property. In this instance each spouse retains separate estates, and they are not liable for each other’s debts. Each spouse retains ownership and control over the assets they brought into the marriage and those acquired during the marriage.
Foreign Marriage
The South African law recognizes marriages conducted outside of South Africa as long as they comply with the laws of the country in which they were conducted. However, these marriages should meet the South African legal requirements.
Which marriage contract is the best?
The best marriage contract in South Africa depends on the individual circumstances and preferences of the couple.
For those seeking complete independence in their financial matters, an antenuptial contract without accrual is ideal, as it keeps all assets and liabilities separate.
However, if a balance between independence and shared growth is desired, an antenuptial contract with accrual is beneficial, protecting premarital assets while sharing the gains accrued during the marriage.
For couples who value joint ownership and mutual financial responsibility, a marriage in community of property is suitable, merging all assets and liabilities into a single estate.
Each option has its own advantages, so consulting with a legal expert to understand the implications and benefits of each contract type is crucial for making an informed decision.
Conclusion
With the different marriage contract types at hand, couples have the freedom to choose the contract that represents their values. Consulting with legal practitioners at Brune Attorneys is of great value as you explore what you and your partner intend to do. Brune Attorneys will guide you on which particular marriage types fit your preferences best. We will also help you draft an accurate contract that favours the interests of both parties that are entering into the union. Contact us to get started.