Protecting your assets and financial future is a crucial step for any couple. Whether you are getting married or moving in together, a legal agreement provides security and peace of mind. Without one, you could face significant financial risks. At Barnard Attorneys, we can guide you through these important decisions.
In South Africa, if you marry without a formal contract, you are automatically married in community of property. This means your assets and debts are merged into a single, joint estate. You and your spouse become equally responsible for all liabilities, even those brought into the marriage by one person.
This regime can be risky, as the financial actions of one partner can directly impact the other. For instance, if one spouse’s business fails, the other’s assets are also at risk. The financial safety of both individuals is compromised, making this a high-risk option for many couples.
To avoid a joint estate, you can choose to marry out of community of property by signing an antenuptial contract (ANC) before your wedding. An ANC keeps your estates separate, meaning the assets you own before the marriage remain yours alone. This also protects you from your spouse’s debts.
This contract is not just for wealthy couples. It is a vital tool for anyone who wants to protect their individual financial identity and safeguard their future.
There are two main types of ANC:
Out of Community of Property without Accrual: With this option, each spouse’s estate remains entirely separate throughout the marriage. When the marriage ends, each person keeps what is in their own estate.
Out of Community of Property with Accrual: This is a popular choice that allows for a fair distribution of wealth. It keeps your pre-marital assets separate but ensures that any wealth accumulated during the marriage is shared equally upon divorce or death. The ANC clearly defines what is included in the accrual and what is excluded.
South African law does not recognise common-law marriage. This means that living together, regardless of how long, does not give you the same legal rights as a married couple. Without a formal agreement, neither partner has an automatic claim to the other’s assets, and resolving financial matters after a breakup can be complex and expensive.
A partnership agreement or cohabitation agreement is essential for unmarried couples. It is a legally binding document that outlines how assets, liabilities, and financial responsibilities will be managed during the relationship and how they will be divided should the partnership end. This type of agreement provides security and legal clarity for both partners.
At Barnard Attorneys, we are ready to assist you in creating the right agreement for your situation. Contact us today to ensure your future is protected.
