"Will you do me the honour of being my …" We pretty much all know how the story goes; but wait, hold your horses! how should 'we' get married?
This question is quite an important one because once the horse gets out of the stable, it is gone! That is to say, the marriage system you choose will have a lasting substantial impact on you in all aspects, emotionally and economically.
So in essence, choose wisely.
Our South African Law recognizes three types of marriage systems, namely: Civil marriages, Civil unions and Customary marriages. All these marital regimes are managed by the Department of Home Affairs.
Are marriages "negotiated, celebrated or concluded according to any of the indigenous African customary law systems which exist in South Africa." By default, these marriages are in community of property, this means you will have to share all assets as well as the ability should you maybe wish to dissolve such a marriage.
This is a legally recognized marital arrangement similar to conventional marriages, it was created in 2006 primarily as a means to provide legal recognition to same sex (homosexual) marriages.
This is the traditional form of marriage, by law, such marriage may specifically be entered into by or between a man and a woman.
Given all these different types of marriages, there are nuptial contracts that can exist between intending couples and as such, there are different conditions which are associated with these contracts based on what the couples agree to.
It goes without saying that it is very important for people intending to get married to make an informed decision about the type of marriage they would like to enter into, as well as the consequences associated thereto.
Marital contracts may exist between prospective legal couples or during the actual marriage- they are essentially there to manage the rights an obligations of each spouse, either in part or in whole concerning the marriage. This is opposed to the default "community of property" system.
Some couples are of the view that there is no need for a specific nuptial contract, others go to the extent of linking ones determination and love to whether they would want to enter into an antenuptial contract or not, that is to say, some feel that if their partner wants to draw a nuptial contract, they think that partner does not really love them or they are just not serious about the marriage, "after all if we are in this together why not share our assets and liabilities?" To be quite frank, unforeseen events do come up and people do realize that "actually, we think that getting married was a mistake" and when that happens, having an antenuptial contract comes in handy.
On the other hand, some couples for practical reasons, prefer and deem it desirable to make use of such nuptial contracts because they help partners to determine how their property should be divided in the event of a divorce or death, basically each spouse controls his/her own estate exclusively without the interference from the other spouse (although each still has a duty to contribute towards the basic household necessities according to ones means).
You as an individual know what is best for you and your overall interests, so YOU choose!
But what are these nuptial contracts that we are talking about?
An antenuptial contract is a marital contract entered by people intending to marry and it simply means that either or both parties do not want their assets to be shared equally or be involved should they divorce, die or the other be insolvent. Such contracts must be drawn and signed by both parties.
Should you and your better half decide to get married (customary marriage/civil union/civil marriage) out of community of property, the first step to take is to contact a qualified and admitted notary public, they will then draft the contract for you to accommodate your own unique situation and ensure that the contract will best suit your mutual needs. After the drawing of the contract, both parties will have to sign it in the presence of the notary and he/she will then "execute" it (sign and place his official seal of office). Once the contract is signed and notarized, the notary will then lodge the contract in the Deeds Registry for registration. However, registration of such specific contracts does not have to be before your actual wedding date, but it must be within the (3) months of the contract having been notarized. If spouses for some or other reason fail to register their contract in the specified time, a post nuptial execution of the antenuptial agreement is possible by means of a High court application to ensure that you are in control of the marriage you decided to enter.
I do not want to cancel the possibility that this information may be interesting and quite clear, but for some, it may quite be overwhelming, but do not despair! We at NvR attorneys have family law experts and highly regarded notaries who are ever ready to lend a helping hand, so please, just give us a call and allow us to help you regarding this.