Marriage is certainly one of the biggest decisions made by spouses: the consequences both personally and publicly are life changing.
The most gravitating change occasioned by the act of marriage, becomes most important at the end thereof. Often one regards marriage as ending in divorce as a trigger for the consequences thereof. This is true, but the marital regime chosen by parties comes into play at the end thereof, be it by divorce or death.
There are three marital regimes in SA Law – no prior agreement implies a marriage in community of property, which creates a joint estate, each party owning an undivided share in that of their spouse: co – ownership of every asset every owned by them (there are exceptions) – in the alternate a marriage out of community is concluded by way of Antenuptial contract and can include or exclude the accrual system.
The error that most often occurs in practice is that prospective spouses do not realize that:
- An Ante-nuptial contract must be signed prior to their marriage,
- Must be signed before a notary public, and
- Must be registered in the Deeds Office to be affective.
The effect of the ANC is far reaching and it is important that parties obtain specific advice and that the agreement is drafted after proper consultation and in view of the possible changes in the relationship between the parties in the future.
In addition the parties must take advise on the law applicable to the consequences of their marriage should they or one of them not be domiciled in South Africa at the time of marriage.