While South African society has become very progressive, our legal system is slow to adapt, as it’s a laborious and time-consuming process to replace legislation. As a result, some relics of a past era remain part of our law. Couples getting hitched should take note of how this can affect their financial security not only at divorce, but also while they’re married.
These days, many soon-to-be-wedded couples know about the legalities surrounding a marriage. They’re aware that under South African law, any couple failing to agree otherwise will automatically be deemed married “in community of property”.
But, most couples only associate marriage agreements with divorce. How does your agreement affect you while you’re married?
Until 1984, our legal system considered a wife to be the subordinate of her husband. The burden of the “marital power” robbed most married woman of the ability to enter into any significant legal transactions without prior approval from their husbands. For all material purposes, wives were treated as children. Although the “marital power” has now been abolished, the marital property regime it was linked to remains intact.
When a couple marries without concluding an antenuptual contract (ANC), also known as prenuptual agreement or ‘prenup’, they indirectly agree to the following:
The only way to protect both parties is by signing an ANC prior to the wedding ceremony. The basic effect of an ANC is to ensure that the spouses’ assets are kept separate, affording the couple valuable protection against creditors. In addition to this, most married couples choose to include ‘the accrual system’ as part of their ANC. The accrual system ensures a fair distribution of assets when the marriage ends. This is best illustrated by an example:
Although, the above calculations aren’t always easy to understand, the important thing to remember is that the inclusion of the accrual system leads to the fairest possible result. For this reason, almost all couples choose to be married with an ANC that includes the accrual system.
Whether or not a marriage ends in divorce, an ANC is the only responsible and fair way for a couple to protect their assets against creditors and financial risk during their marriage. While tending to the legalese might not come naturally while you’re getting ready for your romantic wedding day, it’s an essential part of planning the wedded bliss you’ve always dreamt of.
Some other benefits of an ANC are the following:
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