Heather Hogan
In a milieu where people marry until “divorce do us part”, it’s best to be cautious when deciding how to legally formulate a marriage.
The major decision is whether to be married in or out of community of property. Unless you specifically choose otherwise, your marriage is automatically concluded in community of property, though most lawyers will advise you against such an arrangement.
Should you neglect to arrange an antenuptial contract, your community of property status can be reversed, but not without much trouble and money.
Community of property literally means everything is equally divided in the event of divorce. Strictly speaking, thanks to amendments made to the marriage laws in November 1984, community of property partners need to have written consent from their partner for even the most trivial financial decisions.
The great danger of community of property arrangements is that debt is also shared. If your partner goes bankrupt, your personal inheritance may swallowed by his or her creditors.
The better option is the antenuptial contract. This specifies how assets will be divided in the event of divorce. A common arrangement is to specify that each party will retain the assets they bring to the marriage. Then the accrual – the accumulation of assets from the time of marriage – is divided equally. The antenuptial contract specifies these assets, and precisely how the accrual will be calculated.
An antenuptial contract can be obtained from as little as R360, although it differs according to the value of your assets, the costs of your lawyer and the intricacy of your affairs.
“Common law marriages” do not exist under South African law. But customary unions are now recognised, provided that they have been properly registered.
Should a man have more than one wife, only one of them can be a civil marriage. His other wives will be customary. However, as long as these unions are registered, the relationship is now governed according to conventional marriage laws, and the 1998 Recognition of Customary Marriages Act. This means that wives in customary marriages now have most of the rights of those in civil marriages.
Should a marriage end in divorce, an antenuptial contract can be challenged if the marriage took place before 1984. Parts of the contract may be considered null and void. One may then ask for the redivision of certain assets.
A divorce can cost as little as R90 – R20 for the revenue stamp and R70 for sheriff’s fees. If undertaken at the high court, and uncontested, it will cost about R3 000. But if the case is contested, it can cost a great deal more.