Article by listed attorney: Fawzia Khan
Getting married must undoubtedly rank as one of the most significant milestones in a person’s timeline. This, regardless of whether or not the marriage remains intact or ends through divorce. Amidst all the things that normally take precedence during the wedding planning stage, the issue of type of marital regime should be on top of the wedding list of the intended couple. Sadly though this all important decision is relegated to an after-thought, often with disastrous consequences. Off course every marriage will ultimately terminate, either through death or divorce. With that in mind, it becomes crucial that before a couple decide on the date of their marriage, they should give proper thought and get professional legal advice, preferably independent of each other, as to which type of marital system would govern their marriage.
All marriages which are not registered by ante-nuptial contract automatically default to an “in community of property” marriage. The two types of “out of community of property” are “with” or “without” the accrual system, both of which have to be registered through an ante-nuptial contract. This is done by a notary public.
What marital system may work for one couple, may not necessarily work for another. The type of employment or career path the couple wish to pursue, the risks associated [when viewed from the perspective of creditors] with that chosen career, what assets the couple own are some of the considerations a notary public or attorney will look at and will guide you towards making the correct decision in this regard. Sometimes the couple may decide that one of them would take on the full time role of stay at home mom (or dad) and raise the family. More often than not though, both parties would want to continue to earn a separate income and jointly contribute towards the marital expenses.
On 17 April 2015, the High Court delivered its judgment in a divorce case where a woman who was married by ante-nuptial contract without the accrual system, claimed that the ante-nuptial contract she concluded with her husband, prior to the marriage, was tainted with fraud and be set aside. She said that her husband used undue influence in getting her to sign the contract. She told the court that she and her husband verbally agreed that they would get married out of community of property, but that the accrual system would indeed apply. An accrual system is where all assets which accrued by both parties for the duration of the marriage is valued and shared on termination. Her husband was a successful businessman, whilst she worked in his business earning a modest income. She wanted the court to set aside the ante-nuptial contract on the basis that it was null and void and for the court to declare that her marriage was in community of property. To succeed in such a claim, the wife needed to prove to the court that the ante-nuptial contract was indeed induced by undue influence. The wife claimed that her husband acted in a fraudulent manner, in getting her to sign the agreement. The husband denied this, saying she was fully aware of all the terms of the ante-nuptial contract. The court rejected the wife’s claims and said that there was no basis to justify setting aside the ante-nuptial contract. The judge however was not impressed by the husband’s overall conduct and ordered, that amongst other things, he pay maintenance to the woman for a period of 5 years after the divorce.
Once a particular type of marital system has been decided, it cannot be undone without the court’s consent. This will come at a cost and could cause much inconvenience and perhaps even prejudice. Taking the time to ensure that you have all the necessary information so that you make an informed decision in this regard cannot be over emphasized. To ensure parity and equity between the parties, making the right decision in your choice of marital regime becomes critical. It makes sense to see an attorney or better still to consult with a notary public and get proper legal advice about which marital regime would be best suited for you.
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