Most of us hope to one day hear wedding bells ring as we say our vows while lovingly staring into the eyes of our significant other.
Marriage is a sacred union between people who devote themselves to each other in front of the law and their gods.
However, sometimes between all the wedding planning and excitement, people forget the legal implications of such a union and only realise the consequences once they have tied the knot.
In South Africa, we have two types of marital regimes, namely, in the community of property and out of community of property.
There are many differences between the two marital regimes, but the main differences are:
• In community entails the joint estate of the parties, upon dissolution of the marriage, is divided 50/50.
• Out of community have two variations. One with the inclusion of the accrual system and one with the exclusion of the accrual system. The difference is that without the accrual system, everything that is registered in the names of either of the parties remains theirs after the dissolution of the marriage.
With the accrual system, each party registers a starting value at the inception of the marriage and upon dissolution, the personal estates of the parties are calculated and the difference between the two estates is divided between the parties.
The out of community of property regimes are registered by way of an antenuptial contract (ANC). If you get married without considering which marital regime you wish to register, then the automatic marital regime is in the community of property.
If you wish to change the marital regime you will have to seek legal advice regarding the same. Generally, you are not allowed to register an ANC after the marriage is concluded except with the permission of the High Court of South Africa.
An application is made to the High Court by both parties, to ask the court to grant the parties leave to sign a Notarial Contract (having the effect of a postnuptial contract), which after registration will regulate their new matrimonial property system.
In order for the parties to change their matrimonial property system, the following requirements will have to be met:
• sound reasons for the proposed change must exist,
• sufficient notice of the proposed change must be given to all creditors as well as the Registrar of Deeds, and
• the court must be satisfied that no other person will be prejudiced by the change in the matrimonial property system.
Once such an order is granted by the court, the postnuptial contract is executed and thereafter registered in the deeds office.
Should this scenario apply to you and should you require any further information or assistance on this topic contact Tuckers Inc. on 011 897 1900 or info@tuckers.co.za
Article contributed by Justin Ferreira.
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