Other important aspects cover the respective rights and responsibilities of husband and wife with regard to both assets and liabilities should the marriage be dissolved. Three basic systems are currently operative, so pay attention and remember to read between the lines!

In Community of Property

Unless otherwise stated in an antenuptial contract, marriages conducted in South Africa are deemed to be in community of property. All the assets and liabilities belonging to each spouse at the time of their marriage, and those acquired thereafter, are merged in a joint estate co-owned by both husband and wife.

During the marriage both spouses have equal powers of administration in respect of the joint estate; however, certain acts relating to the estate can only be performed with the consent of the other spouse. Should the marriage be dissolved, each partner will have claim to half of the assets in their joint estate. One of the major risk factors here is that debts incurred by either husband or wife while married are joint debts.

Out of community of property

Requires both parties to enter into an antenuptial contract before the wedding, which must be signed by both bride and groom. Minors will also need the signature of their parent or guardian.

Indigenous and customary marriages

Although South Africa is a country of diverse communities and customs, indigenous and customary marriages have not received formal recognition here. This means that in addition to whatever customary marriage ceremonies couples choose, in order for it to be legal they must be married either in court, at the Department of Home Affairs or by an official marriage officer.

On the dotted line

The antenuptial contract is an important part of estate planning, and something that both partners should understand and feel comfortable with, even if it means seeking independent legal advice. When drawing up the contract, each party lists his/her assets, recording the accumulated value.

For the duration of the marriage, these and all other assets purchased by the respective spouses remain their own property, with husband and wife each being able to deal with their own estates as they deem fit. Each partner is responsible for his or her own debts, whether incurred before or after the marriage.

Contracts entered into “with the accrual system” allow husband and wife to retain separate estates during the marriage. On its dissolution, by death or divorce, the net increase in the value of each spouse's estate is calculated and that increase is divided equally between the spouses.

Only the profits made during the marriage are shared; spouses do not share their debts. Assets accrued before the marriage is not shared. This is usually considered to be the best option for couples as it offers the sharing benefits of an out of community of property system combined with the protection of the in community system.

The only difference in a marriage “ without the accrual system” is that the estates remain completely separate even after the dissolution of the marriage. There is no sharing by either spouse in the other's estate.

What’s in a name?

It’s no longer automatic that women change their maiden name when getting married, and you are free to either take on your husband’s name or add his name to your own, with double-barrelled surnames becoming increasingly popular. While there is no legal procedure for the latter option, your bank will want to see your marriage certificate.

Remember, too, that your children, regardless of your choice of surname, will legally take on your husband?s name.

Just the ticket

Don’t book your honeymoon tickets in your married name as you won’t have time to change it with Home Affairs before you leave.

To the letter

In order for your marriage to be legally valid, the person who performs the ceremony must be a recognised marriage officer. Not all priests, ministers and officiants are marriage officers, so you must establish this before your ceremony.

Changing your status

While you can’t update an antenuptial contract as you would a will, your chosen marital system may be altered through a High Court application. You will need to provide proof that your creditors won’t be put at risk by the changes, and you also need to advertise your intentions to make changes and inform all creditors. This is a very costly exercise, so it’s best to make the right choice before the wedding.

Where there’s a will

Who considers a will when there is a wedding on the go? You think about the happy years you will spend together and all the memories you will build. But as you never know what life will bring, preparing for your partner’s security in the event of death is just one of the ways that you can manage that future.

This will ensure that your spouse will be provided for in event of your death, and also avoid the implications of dying intestate, or without a will. Your will must be changed whenever your status changes (for example, when you have children, or happen to divorce). The best time to draw up a will is after the marriage date, and a mutual will or two single wills can be drafted.