Getting married?

Make sure you have the necessary legal advice to ensure your union protects the rights of both partners.

Antenuptial contracts

As the name suggested, an Antenuptial Contract (ANC) is an agreement entered into between two parties prior to their marriage in order to regulate each spouse’s property and ability to do with that property as he or she chooses.

Also known as a pre-nuptial agreement, the ANC regulates what happens upon the dissolution of a marriage – which does not mean only divorce, but also in the event of the death of one of the spouses.

When two people are married without an ANC, they are automatically married in community of property. If an ANC is concluded, the marriage is out of community of property with the accrual system. If the parties wish to exclude the accrual system, it must be specifically excluded.

It is therefore important when entering into a marriage that parties consider, how they wish their marriage to be and the consequences of the dissolution of the marriage, which includes death.

Life Partnership Agreements

Should you choose not to get married you must bear in mind that life partnerships are not binding on the parties unless they enter into a formal life partnership or cohabitation agreement. Thus, none of the legal consequences of marriage automatically arise if a couple lives together without getting married.

Life partnership and cohabitation agreements, unlike other marital regimes, are binding only on the individuals to the agreement and not third parties. It is important to consider entering into a life partnership or cohabitation agreement because for example, life partners do not automatically share in each other’s property during the existence of the life partnership or upon its dissolution.

Although life partners may nominate each other as heirs in a will, they do not inherit from each other in terms of the intestate succession act, unless they can show that they are in a permanent life partnership and have undertaken reciprocal duties of support. Similarly, in the case of a maintenance claim in terms of the Maintenance of Surviving Spouses Act, a life partner would have to show that they were in a permanent life partnership and have undertaken a reciprocal duty of support. In both instances, it is highly advisable to execute a will and conclude a formal life partnership or cohabitation agreement.

It is, therefore, crucial to seek sound legal advice on the options available and to consider the consequences of each option so that your attorney may carefully prepare the necessary agreement for the purpose of safeguarding your and your partner’s interests and preventing future uncertainty.