The laws that govern marriage and matrimonial property (belongings of the spouses that form part of the marriage) are numerous and complex. That being said, our courts are comprehensive, and very protective of the sanctity of marriage and spouses, and children left out in the cold by divorce.
This article explores the difference between the laws that apply to the solemnisation of a marriage, and the legal and proprietary consequences of a marriage after conclusion. Thereafter it explores the legal effect of getting married without first having signed an antenuptial contract, and the practical effects that this might have on the spouses and their families with the aim of educating prospective spouses as to their options and encouraging them to seek proper legal advice before making one of the biggest commitments of their lives.
The law that applies to the marriage
At this point it is necessary to distinguish between the legal requirements necessary in order to ensure that the marriage is properly concluded (or solemnised) and the law that governs the consequences of the marriage for the spouses.
If you are physically getting married in South Africa you will need to ensure that your marriage complies with the legal requirements for the solemnisation of marriages in terms of South African law. If you are getting married in another country, then the law of that country will stipulate what the legal requirements are for a marriage to be validly concluded in that country.
In South Africa a person can get married in terms of civil law, customary law, or in terms of a culture or religion (such as Hindu law, or Muslim law). Even same-sex partners can get married by concluding a civil union. However, not all marriages are recognised by our courts as being valid or “official” marriages. There are special requirements that the spouses of each type of marriage must comply with, in order to render their marriage valid – the requirements differ from one type of marriage to the next. It is very important to speak to your religious or marriage officer to ensure that your marriage will satisfy all of the legal requirements for recognition.
The legal and proprietary consequences of the marriage
The legal relationship between the spouses and their property will be governed by the law of the country in which the husband is domiciled at the time of the marriage. It is uncertain at present on how to determine which law applies to a marriage where the spouses are the same sex and they are domiciled in different territories. It has been suggested that the law should be reformed to exclude all references to gender/sex and to simply provide for a manner of determining which country’s laws will apply based on several factors including the domicile, habitual residence, nationality, and connectedness of the spouses to the laws of any particular country.
If it has already been established that South African law will apply to the marriage, the next question to ask is whether it will be in or out of community of property. In South Africa if spouses marry without signing an antenuptial contract before concluding the marriage, then the marriage is one in community of property. If they sign an antenuptial agreement before the marriage, then it will be out of community of property. This applies to every type of marriage.
There are two general consequences of a marriage in community of property: community of property and community of profit and loss.
Community of property
This is the legal situation where all property owned by both spouses at the date of the marriage is thereafter lumped together in a joint legal estate which is co-owned by both spouses. This means that your spouse will automatically become the half share owner of everything that you own, and vice versa.
Exclusions from community of property
Certain property is excluded from the joint estate. This includes anything that is donated or bequeathed to a person on the specific condition that the property not form part of any joint estate by virtue of marriage or accrual. Other exclusions include awards of patrimonial damages (an amount of money awarded by a court to the spouse in a court case for loss suffered).
The second general consequence is known as community of property and loss. This entails that the gains and losses of either of the spouses are shared equally between them because they are actually gains and losses of the joint estate and not of the individual spouses. For example, if you are married in community of property and your wife inherits a house from her late mother, you will automatically become a half share owner of the house. Or if your husband runs up a R1m debt betting on horses, you will be liable for half of that debt.
Practical consequences of community of property and profit and loss
No one complains when they share in their spouse’s gains; but when they are dragged down by their spouse’s losses, the problems start. As mentioned above, the losses of either spouse are considered the losses of both spouses and property held in either of their names can be attached by the creditor and sold to satisfy the debt. This means that even if you have worked your whole life to build up your own asset base, if you are married in community of property your assets can be attached by your spouse’s creditors to pay your spouse’s debts.
Insolvency and community of property
In more extreme cases, where there is insufficient property in the joint estate to satisfy the debts (meaning that all property of both spouses has already been sold to settle the debt but the value obtained on the sale was not enough to pay off the whole debt and there is still debt remaining), both spouses will be sequestrated (declared bankrupt). This is because both spouses are considered to have one joint estate – and if the estate of the husband is insolvent, then by virtue of it being joined together with the wife’s estate – both spouses will be declared bankrupt by the courts. This makes it impossible for spouses married in community of property to protect their assets by holding them in the name of the spouse who has less debt and a lower risk of future debt.
Some people argue that it is better that both spouses share equally in all ups and downs of the marriage, and that they should stick together through good and bad (including insolvency or a big Lotto win). While this certainly has its attractions from a moral and maybe even a religious or cultural point of view, from a legal perspective it deprives both spouses (and the children of those spouses) of the protection of assets that marriage out of community of property could have provided. Regardless of your moral, religious or cultural convictions, marriage without an antenuptial contract exposes you to unnecessary risk and should be avoided at all costs.
Words: Chantelle Gladwin, Partner at Schindlers Attorneys