Loving lockdown together? What to consider if you're getting married after this
As exciting as that may be, it's important not to forget your ante-nuptial contract, warns Di Siena.
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Breakfast in bed, endless quality time together, boardgames and no arguments – if you're loving life together in lockdown then this may be a good indication of how your relationship may play out in the years ahead.

Being confined to our homes for long periods of time is not an occurrence which many of us have had to endure, says Deborah Di Siena of Di Siena Attorneys.

The threat of unemployment and the downturn in our economy could make most people feel depressed, agitated and stressed, so if you and your significant other survive lockdown together, you may be considering get married once this is all over!

As exciting as that may be, it's important not to forget your ante-nuptial contract, warns Di Siena.

There are three matrimonial property regimes which are applicable in South Africa.

You can either marry in community or property, out of community of property with the accrual or out of community of property without the accrual.

You may be wondering what each matrimonial property regime may entail.

Attorney Di Siena provides a brief summary of each one below, and answers common questions:

A marriage in community of property

You would have heard the saying “What’s mine in yours and yours is mine”.

This is where the parties did not enter into an ante-nuptial contract before entering into the marriage.

If you do not enter into an ante-nuptial contract, you are automatically married in community of property.

Before the marriage, each party has their own separate estate. When they get married, both estates merge into one joint estate, which includes assets and liabilities.

While some may view this as the most fair and convenient choice, it also places both parties at risk especially if one party is sequestrated or the marriage ends and the joint estate is encumbered with debts.

In terms of this matrimonial property regime, both parties share in the assets and liabilities of the joint estate.

If the liabilities exceed the assets, their will be no assets to divide and both parties will then be equally liable for the liabilities of the joint estate. 

A marriage out of community of property without the accrual system 

Again the saying “what’s yours is yours and what’s mine is mine” applies. However, it has a very different meaning in this instance.

In terms of this matrimonial property regime, the parties retain their separate estates as if they were never married and should the parties ever divorce, neither party may have a right to claim against the other spouse’s estate.

However, this does not mean that a spouse will lose the right to claim spousal maintenance and children’s maintenance.

Certain remedies may also be applicable in the event of a divorce. 

A marriage out of community of property with the accrual system

A marriage out of community of property with accrual (which simply means “increase”) allows spouses to retain their respective estates, but should they decide to divorce, the spouse whose estate shows a smaller accrual may have a claim against the accrual in the other spouses estate.

This is a financial calculation and it therefore does not mean per say that assets are divided between the spouses.

This option is recommended for couples who have, or foresee, a big difference in their respective incomes.

For most, this is the fairest option especially for young couples planning a family or for couples that already have amassed large estates. 

What is an antenuptial contract or ANC (as some people know it) and when do I need one?

Simply an ANC is a contract entered into between the parties, prior to their marriage, regulating the patrimonial (property) consequences of their intended marriage and signifying their intention to marrying one another either with or without the application of the accrual.

The most common reason why people elect to marry out of community of property is to protect their assets and financial position prior to and during the marriage.

The ANC, to a certain extent, allows the husband and wife to tailor-make their very own matrimonial property regime.

It is important to note that in terms of the Matrimonial Property Act, should you not expressly exclude the accrual system in your ANC, then by default the accrual system automatically applies and you will therefore be married out of community of property with accrual.

The contract must be signed by both parties intending to marry before the marriage is entered into.

If the agreement is signed timeously, the contract will then be registered in a Deeds Office and this can still take place after the marriage. 

In the event that the ANC is not signed before the marriage, the parties will be married in community of property. 

While an ANC may be a fairly simple document, it should not be entered into without consulting a legal practitioner, so that both parties understand the legalities and implications thereof before the contract is entered into.

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