Legal Protection for Couples

Wedding season is in full swing in South Africa, and couples are ticking important items off the “to do” list for their big day.

While the venue, menu, flower arrangements, dress and vows form the exciting part of the wedding, there are other aspects of a marriage that can place unnecessary stress on the love-birds ahead of their wedding day. One important decision for couples to make before starting a life together is determining the type of marital regime to enter into.

According to Vera Nagtegaal, the executive head of Hippo.co.za, it is incredibly important for engaged couples to spend some time to consider the various legal protections available that will help to ensure that they enjoy a happy marriage without placing unnecessary financial risk on each other. 

Nagtegaal explains that the unfortunate misconception amongst many couples is that any type of cohabitation agreement or marriage contract is only there to protect themselves in the event of a divorce. “The reality is that having some sort of legal protection helps to guard each partner against a number of financial risks that can also be linked to business debt and even death.”

While antenuptial agreements (ANC’s) are the most common type of marriage contract, there are a number of cohabitation and marriage agreements that could be considered. It is always good to speak to someone qualified, such as a lawyer, who will be able to explain the various types of options available.

Nagtegaal says that it is important for couples to do their homework in order to understand what type of legal protection will best suit their needs and circumstances. “Should couples decide they do not want an ANC or other form of agreement in place, they will be married in community of property by default.”

Some types of marriage agreements available in South Africa include:

  • Married in community of property: This means that everything you own will be shared equally between you and your partner, including anything you own when you get married, and anything you earn or create while you are married. If you get divorced, all assets and debts are split equally.

One of the biggest risks associated with being married in community of property, is if one party accumulates large amounts of debt or is implicated or cheated in a business deal for example, the other party would also be held liable for their debt.

“Should one partner default on debt, the other partner’s income or assets can be taken from them to service that debt,” says Nagtegaal.

If you get married without consulting with a lawyer, and drawing up another type of cohabitation agreement or marriage contract, this will be the type of marital regime you have by default.

  • Married out of community of property: This means that you continue to exist as two separate financial entities. Your possessions and debts are yours and your partner’s possessions and debts are theirs. Should you be separated by death or divorce, you keep what you had before you were married, and you get to keep everything you earned during the marriage.
  • Married out of community of property, with accrual: While both parties maintain their separate financial identities, everything that they earn or the growth of their assets after marriage is evenly divided between them.

It is possible to make certain stipulations about items or earnings that can or can’t be included under accrual – for example inheritances are often excluded.

Choosing an option

Nagtegaal points out that if the couple establish themselves as individual financial entities by getting married out of community of property, they cannot be held responsible for the debts of the other party.

Important considerations

One of the most important considerations to take into account before selecting the type of marital regime you want to enter into is that your will cannot override your marriage contract – so only your agreed portion of your assets can be dictated in your will.

For instance, if you wanted to leave your money to charity, but you were married in community of property, your spouse would retain her or his portion of your money, regardless of what your will stated.

If you were married out of community with accrual, the accrual calculation would have to be finalised first, before your remaining income could be allocated in line with the wishes expressed in your will.

“The discussions you have with your lawyer as you draw up your ANC are extremely valuable for planning your future together,” says Nagtegaal. “The process may force you to face some hard decisions, but an open and honest process like this is a fantastic first step for building a future together.”