18 Dec 2013

Litigation Update, Engagements, Rings, Weddings, Parties, Rainbows, Butterflies and Real Life...

by Jennifer Woker, Partner, Johannesburg,

We've all seen it. Nowadays social media makes it impossible to miss. The big announcement on facebook "I'm engaged" (or sometimes it's a "we're" if s/he is lucky enough to be included in their future spouses status!), the picture of the ring (specially designed you know and look at the size of that rock). Then there's the engagement party and the beginning of the wedding planning. The couple is so in love and everyone is (hopefully) ecstatic for them. The planning begins with great enthusiasm with magazines on everything from dresses, to cakes, to what to put in the pamper rooms. There are dress fittings and color schemes, food tasting's, hen's nights and kitchen tea's and let's not forget the bull's night. 

Everything is coming together nicely.

Somewhere however in the back of the bride and grooms mind they know they should think about how they should get married. They've heard people talk about ante-nuptial contracts and pre-nups (you've been watching too many American TV shows by the way)and the accrual system, but really they have no idea what that means. 

So… what do you do? Well firstly, here's some basic need to know information:

In South Africa the default marital system is one of in community of property. If you want to get married out of community of property you have to sign an Ante nuptial Contract (ANC) – in your mind a Pre-Nup, but that’s a colloquial American term not used in South Africa. There are different types of out of community of property marriages.


Marriage in community of property means that you have community of property and community of profit and loss. Everything belongs to your joint estate. eg. if you buy a Porsche, half the Porsche belongs to your spouse and vice versa. This may sound like a nice romantic notion but it means that you are joint owners of everything, including debt. eg if when buying the Porsche you take a loan from someone to pay for it and get a judgment against you because you don't pay – it operates as a judgment against both of you. If one of you is sequestrated it means both of you would be declared insolvent. You also need to sign many contracts together and you can't just contract on your own.

 One would generally recommend against this regime (unless you are a pauper and are marrying a King/Queen), especially if either of you plans to get a business up and running because if there is a problem you do not want creditors to be able to come after the other person for their goods or salary.

 On dissolution of the marriage (by death or divorce) each party is entitled to half of the net state (including assets and liabilities)


 This is the matrimonial property regime that you have governing your marriage if you sign an ANC. It means that there is no community of property or profit and loss. There is no joint estate. You can have one bank account and share everything but the "law" will see it as two separate estates and that is why there is no liability for the other person's debt.

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

 If there is no accrual system this means that there are two separate estates which remain separate at all times. What you own/bring into the marriage at the outset remains yours and what you acquire/earn during the marriage is yours. On dissolution you take what is yours and have no claim on the other's estate (although there may be circumstances where a court orders otherwise)

Marriage out of community with accrual is where you have your own estates and they remain separate at all times during the marriage. This means that creditors can't come after the other person's assets or salary. On dissolution of the marriage however what the accrual system does is looks at how each person's estate has grown during the marriage and then splits the difference effectively enabling each party to leave the marriage on equal footing.


Matrimonial Dept:

Estelle de Wet 031 575 7505 and dewet@wylie.co.za

Candice Eve-Friis 031 575 7506 and eve@wylie.co.za

Kate Oosthuizen 031 575 7542 and koosthuizen@wylie.co.za