Marriage is a big step, both legally and financially - and starry-eyed as you may be, it will seem very unromantic to be thinking about money and legal issues when you`re planning the wedding of your dreams. But in reality, marriage is a binding lifelong contract with a number of implications. In this issue Marina Constas (BA LLB) from Biccari Bollo Mariano Attorneys looks at the types of contracts available and the implications that these will have on your years ahead while answering some of the questions we have received.

Marriage in today`s society has been described by Professor Homer Clark as "some sort of relationship between two individuals, of indeterminate duration involving some kind of sexual conduct, entailing vague mutual property and support obligations, that may be formed by consent of both parties, and dissolved at the will of either".

Hopefully the general view on marriage is far rosier and more optimistic than this. Certainly your wedding day is amongst one of the happiest and most exciting days of your life. It is, however, imperative to be aware of the legal implications involved before you say "I Do".

Throughout your wedding preparations you will be bombarded with information about venues, dresses, make-up, music, photography and all those things linked to a fairytale wedding. Remember that, during this time you should also be investigating which matrimonial property regime you will be entering into. If you do not physically sign an Ante Nuptial Contract, you will automatically be married in Community of Property.

In theory this appears to be a fair and ideal way to get married as the assets are split down the middle on divorce. "The truth of the matter is, that all liabilities are also split equally! This in effect means that if your spouse incurs debts, you will be liable for half of those debts and furthermore, if your spouse is sequestrated, you will be too!"

It becomes clear that there are dangers in getting married in Community of Property. Apart from the above dangers, the contractual capacity of the parties becomes limited. What is meant by this is that both of you have the full capacity to enter into contracts with regards to the joint estate, but a spouse must obtain the other spouses consent to do certain things. For example, you would need consent to sell or mortgage your house, fixed property which forms part of the joint estate, enter into any credit agreement for example, purchasing a motor vehicle, binding yourself as surety, sell stocks, shares, jewellery, coins, stamps, paintings or any other assets held as investments. You may not withdraw money held in the name of the other spouse held in a bank or building society account or sell furniture or other effects of the common household forming part of the joint estate.

When the spouse enters into a transaction with a third party without obtaining the requisite consent, the transaction is valid provided the third party does not know and cannot reasonably know that consent was not given. This is to protect third parties and to ensure the smooth functioning of commerce and trade.

What if one spouse unreasonably withholds his or her consent?
Marina: "In this situation the court may intervene and allow the spouse to enter into the contract without consent".

In this instance, each spouse is treated as a separate entity. Neither spouse is liable for the other`s contractual debts. It is interesting to note that the spouses are jointly and severally liable to third parties for all debts incurred by either of them in respect of "household necessaries". What is defined as a household necessary is debatable.

Can you change your matrimonial regime ?
Yes, the court will allow you to change the way in which you were married as long as there is a joint application made, and as long as the following requirements have been met:
- There are sound reasons for the proposed change;
- Sufficient notice of the change has been given to the creditors of spouses;
- No other person will be prejudiced by the proposed change.

"Bear in mind that the application to change your marital regime is costly and time consuming and by becoming aware of the implications of the various options available to you before you get married, you can avoid making mistakes which need to be rectified later," says Marina. "The critical point to remember, and one which I would like to emphasise, is that if you do not formally enter into an Antenuptial contract you are automatically married in community of property."

Presently in South Africa there are three ways in which you can get married: In Community of Property and Out of Community of Property with the application of the Accrual. There have been substantial improvements in our law of matrimonial property over the past few years, in that marriage out of community of property with the application of the accrual system has been introduced. My advice to any couple getting married, would be to explore the options available well before the big day, in order to ensure that the rights of both of you are protected.

There are advantages and disadvantages to each option and in our forthcoming issues we will be focusing on these and other aspects related to the financial implications of marriage.

Article source: LifeWorld