Law experts urge married couples to get their affairs in order
It seems 'happily ever after' isn't enough with the changes to South Africa's divorce laws that include the separation of couples through death as well.
South African law experts are urging couples to settle on their financial goals and expectations as new divorce laws are introduced to parliament.
The laws, which Justice Minister Mmamoloko Kubayi is presenting, are being offered as changes to the divorce law, but also apply to the termination of marriage through death.
This means that married couples outside the community of property, also referred to as married under an antenuptial contract, will be affected if one partner passes away.
The law will allow these couples to lay fair claim to their partner's estate after divorce or death.
Currently, couples married out of community of property, without accrual, are left with nothing despite their years of contribution (financial and non-financial).
While this sounds like a fair way forward for couples with antenuptial contracts or prenups, two notices need to be mentioned.
The law does not apply to those already divorced, which means they still lose out. Secondly, the courts "may have the power to overrule standing antenuptial agreements (aka prenups).
In other words, even if spouses agree to complete property separation, a court can still order a redistribution if one spouse would otherwise face serious inequity." (Business Tech)
For these reasons, law experts urge couples to examine their current marriage arrangements and consider these new laws.
Residential and business property should be considered before tying the knot and even during marriage if acquired once married. Having open and honest conversations about your assets should be the way to go in marriage.
While this topic may kill the romance of the newlywed couple, understanding it is essential before making any big decisions.
If you do not purposefully enter into an antenuptial contract with your spouse, you have automatically entered a marriage in a community of property.
This means that anything you have acquired before and after the marriage belongs to you and your spouse equally. That may seem like a jackpot to some, but it comes with its own set of cons. For instance, if you are married in community of property and your partner has debt, that debt becomes yours too.
It’s impractical to have the parties bound at the waist as neither can act commercially without the other’s consent. In addition, it’s poor risk management because all the assets are exposed to either party’s actions.
Check out this video that explains antenuptial contracts (with and without accrual) on YouTube.
On the other hand, out of community of property with accrual states that "assets you owned before and those acquired after marrying remain yours alone.
These cannot be attached to pay creditors, and you are free to buy and sell property at will. However, a person can claim half of the difference between their estate and their spouse’s higher-valued estate at divorce or death." (Business Tech)
Couples living together without being married should also be warned. Don't assume that because you don't make it official, you are not officially 'common law spouses'.
Business Tech, "Legal experts have noted that South Africa has no automatic protections in place for unmarried couples, with most pushed to enter into at least a cohabitation agreement to iron out the administrative details of their arrangement."
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