The way people get married has a massive impact on the claims that they can make on each other’s future wealth building. By getting married in a wise way, you can protect your assets when you’re in a tight corner. Every marriage ends at some stage, whether it’s a divorce or when one party dies.
In South Africa, there are 3 ways (options) of regulating Matrimonial Property Marriage ( system that regulates assets of married couples)
In Community of property system
This type of system is one of the most common matrimonial property arrangement in South Africa. If you enter into marriage, and didn’t conclude an antenuptial contract ( contract that will regulate your assets during marriage, drafted, & registered by notary), you’ll automatically be married in community of property. Example, if you own a business that generates huge income, car, expensive house, etc, you marry someone with nothing, all those assets by default becomes the property of the joint estate of your marriage. That someone who owned least or few assets, will be entitled to half of your assets (50%). This means that there’s one estate that you & your partner share throughout the marriage.
It doesn’t matter whether one partner contributes or spends more or less than the other.The partner who contributes more to the joint estate will lose more when the estate is distributed upon death or divorce. Even if one partner attempts to create a testamentary will (Will), it won’t assist him/her. The Will, will only apply to half of the joint estate (50%), the other partner will still be entitled to his/her half share. It doesn’t matter even if you complain that you didn’t know about the system, the court will not assist you.
Out of community of property (without accrual)
Getting married out of community of property is opposite of getting married in community of property. This system, however compels both partners to conclude what is called antenuptial contract . This contract will stipulate how you matrimonial property will be divided into two parts (separate estates), i.e. how it will be managed during marriage. Each partner uses his/her own assets without interfering with other’s, even the creditors will not legally interfere with other partner’s property. With regard to creditors, if one partner owes them money, they will seek a court order to attach specifically those assets that belong to a debtor, not the other who’s not indebted to them.
Out of community of property (with accrual)
A marriage out of community of property with accrual system separates assets of both partners,but slightly differs with the one above. The only difference is that although the assets are managed separately but it allows one partner to be entitled to half share of profit and losses of the other (50%of profit and loss, not the whole assets). The antenuptial contract will determine a formula which will be used to divide the two separate estates equally upon divorce or death.You could exclude assets, which were obtained prior to the marriage, including donations or inheritance from the estate.
The only viable option if you have more assets before getting married, is getting married out of community of property with the accrual system in that way it will protect your assets accumulated before getting married, if you feel that way. However, deciding on the correct system of matrimonial property regime, should be carried out with honesty, integrity, sincerity not with ulterior motives.If done with ill – intentions, that will damage your reputation to the other partner.