Changing to a safer ante-nuptial contract is possible
At times, some of our readers seek advice about their legal marriage contracts.
Mostly, couples wish to change from being married in-community of property (COP) to out of community of property, also referred to as an ante-nuptial contract (ANC).
In the excitement of planning a future together, many couples avoid talking about the legal side of their union.
However, when getting married without any formal ANC agreement in place, South African law classifies marriages as being in COP by default.
If you are married in COP, whether deliberately or by default, it means you and your spouse share a joint estate with no division of assets.
Whatever each owned or owed while you were single and whatever you accumulate during the marriage is now shared jointly.
In COP literally means “what’s yours is ours and what’s mine is also ours”.
Cute as that may sound, there are major downsides to this type of contract.
A significant disadvantage is you are responsible for any and all debt incurred by your spouse — even debt incurred before your marriage.
This applies to all contractual debt, personal loans, credit card debt, student loan and even maintenance payable by your spouse to children from a previous relationship.
Many readers realise they were financially stronger before going into such a marriage “regime”.
Some of the reasons our readers desire to change this situation are that one spouse owns a business that is deeply in debt or that their spouse has unhealthy spending habits, gambles or has a problem with substance abuse.
All these threaten the solvency of both spouses under a COP marriage contract.
To change to an ante-nuptial contract, couples need to apply to the high court for leave to sign a notarial contract, which must be registered at the Deeds Office.
To undertake this process, couples must both be in agreement. One spouse cannot make the application without the other’s consent and participation.
When applying to the high court, couples must set out the reasons they want to make the change.
In addition, neither must be insolvent, or have any judgments or legal action against them.
Further, the court must be satisfied that no other person will be prejudiced by the change.
Part of the process includes publishing a notice to creditors in two local newspapers and the Government Gazette, and these notices must be published at least 14 days before your application is set to be heard.
Couples will also be required to send notices to their creditors via registered mail of their intention to change their marital contract.
Because of this requirement, the process can take up to six months to complete.
In preparing for the high court application, couples need to prepare certified copies of their ID documents, marriage certificate, proof of address and income tax numbers.
Information must also be provided pertaining to minor children, assets and liabilities, employment, as well as a full list of all existing creditors.
This is a costly process and we adviseyou consult with an attorney who has experience in this field.
Further, it is important that couples fully understand what it means to be married out of community of property and how it will affect their marriage going forward.
Spouses also need to ensure their wills are updated and must review their respective estate plans.
We live in a traditional society, one that generally still views an ante-nuptial agreement (ANC) negatively, and in-community of property (COP) positively.
The argument is usually around trust and security.
Basically, the proponents of COP hold the view that if, “what’s mine is yours, and what’s yours is mine”, then it means we trust each other.
By implication, should “yours be yours and mine be mine”, it means we don’t trust each other and we enter marriage with divorce already in mind. This is a myth.
Couples opposed to an ANC usually narrowly view this contract from a divorce perspective.
As a matter of principle, and by virtue of being interdependent, spouses should have unhindered access to one another’s property.
It’s sharing the responsibility of running a household, doing chores, raising children and providing for a family — one of the most down-to-earth aspects of married life.
This very practical side of marriage has deep roots in something that can only be characterised as profoundly spiritual, unaffected by materialism.
It’s an awesome and fascinating experience of two becoming one.
However, being married in COP is not a symbol of love, trust and commitment any more or less than an ANC.
Property and assets, as well as love and commitment, are independent of each other.
The vow, “for richer or poorer”, means that your love, trust and commitment towards one another have nothing to do with lack or plenty.
You should love, trust and be committed to one another in spite of your material possessions.
Commitment that is based on the type of marriage contract you choose is temporary.
It will change, based on the challenges you’ll go through.
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