If you are married in community of property:
- Your estate and the estate of your spouse are treated as one joint estate.
- You and your spouse can only enter into certain contracts together.
- You and your spouse share all property and will also share all debt including debt from before the marriage.
Your creditors (yours and his) may go after any property in the joint estate for debt. If your spouse gets into debt you may lose property which you bought. If your spouse owns a business and signed as surety you risk losing everything if the business gets into debt.
It is a little-known fact that if you get married before entering into an antenuptial contract (“wedding contract”) you will be married in community of property. This is also true for African Customary Marriages and any other marriage which is recognised in our law. A valid African Customary marriage is recognised by our law as soon as the necessary African Customs are complete. You would then be married in community of property.
In the last month alone three different couples, who were already married, contacted me wanting a wedding contract.
It is possible to apply to Court to change the property system which applies to your marriage after you are married but:
- The application is expensive; and
- you are not guaranteed success.
This is because your creditors have a right to object to the change to your property system. Avoid the gamble and protect your interests by educating yourself now.
When you enter into a wedding contract:
- Your estate and your spouse’s estate remain separate.
- Your creditors will only be able to go after you for your debt. Your spouse’s creditors must go after him/her for his/her debt.*
- If you have a business which gets into debt you will not risk your spouse’s property.*
- You can enter into contracts without your spouse’s consent (as your estates are separate).
- You have the option to share with your spouse on death or divorce: You can do this by entering into the contract with the accrual (that is: sharing) system. Your estates still remain separate while you are married but on death or divorce you share what you have built together. More information at: https://hurdlehop.co.za/antenuptial-contracts/.
* Subject to the Insolvency Act: The Insolvency Act has protections in place for creditors and these protection will still be applicable.
Which of the two wedding contracts is best suited to you depends on your personal circumstances. More information at https://hurdlehop.co.za/antenuptial-contracts/.
Keep in mind: It is important that your wedding contract is properly worded for it to be valid. In a number of divorce cases the Court has found wedding contracts to be invalid and declared the parties to be married in community of property! If the person you trust to draft your wedding contract does not properly understand / explain the requirements you risk entering into an invalid contract.
We ensure that our clients understand the requirements by including all consultations in our service price. Before you sign your contract we make sure you understand the different terms and have provided us with all the necessary information.
Need an ANC?
Our ANC service includes:
- One draft of your contract
- Registration of your contract
- Any and all consultations
*(Our fees are all inclusive and payable in advance.)
Contact Me For More Info:
Call or email me for more information.
Cell: 082 567 7496
Email: monicas@yhp.co.za