By Naeelah Williams, Staff Attorney, Cape Town
It is safe to say that all couples who are in the process of tying the knot hope from the outset that their journey to marriage will be as stress free and pleasurable as possible. Most couples however, still want personalised and detailed planning and co-ordination for their big day and the costs of the wedding can be exorbitant.
While this is a beautiful time in the couple’s life, and a time for celebration, many couples disregard the importance of the matrimonial property regime that will govern their marriage.
An unfortunate reality is that many marriages in South Africa end in divorce. It is only at this stage that some couples question and attempt to dispute the matrimonial property regime governing their marriage, which becomes rather difficult.
There are three types of matrimonial property regimes in South Africa; namely, marriage in community of property; marriage out of community of property with the accrual; and marriage out of community of property without the accrual. These regimes are governed in terms of the Matrimonial Property Act 88 of 1984.
The most popular regime is marriage in community of property. The reason for this is due to the fact that it is the default regime and requires no antenuptial contract. The belief that couples will live happily ever after, in addition to the high costs associated with wedding ceremonies, often result in couples not wanting to incur the additional upfront costs of lawyers’ fees in drawing up an antenuptial contract. This however, can result in unwanted ramifications in the long run. Being married in community of property results in, and is not limited to, one being jointly responsible for any debt incurred by one’s spouse, which includes debt that was incurred before marriage. As a result, many regard the consequences of this regime rather steep. Couples are however allowed to amend their matrimonial property regime to one of out of community of property. Section 21 (1) of the Matrimonial Property Act provides that a married couple may jointly apply to court to amend their current matrimonial property regime.
It is prudent to note at this point that there are quite a number of requirements that have to be met in order to amend a marital regime. This includes, amongst other things, sound reasons for the proposed change, notice of the intention to amend to be given to the Registrar of Deeds, which must be published in the Government Gazette and two local newspapers, a draft notarial contract to be submitted and proposed to register and to be annexed to the application, as well as confirmation that no other person will be prejudiced by the proposed change.
When a couple decides to separate and divorce, there are various issues to consider, especially when there are minor children involved. It is crucial for the couple to try and limit any adverse consequences the children may suffer as a result of the divorce. Further consideration will have to be given to maintenance of the children and spouses as well as the division of assets. It is always best to try to resolve any disputes that may arise during this hard time amicably. Reaching an amicable agreement or settlement results in the divorce being finalised speedily and without undue delay, thus saving on legal costs while limiting adverse effects on the children.
It is important to reiterate that it is of paramount importance that both parties to the marriage understand the implications and consequences of the type of matrimonial property regime they are entering into. Unfortunately, couples focus so much on the big day that they disregard the implications of neglecting to make a well-informed decision regarding the regime that will inevitably govern their marriage.
