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Know your rights

Know your rights

Attorney Justin Pitout talks about what to know before you say ‘I do’

Marriage can be a wonderful and memorable journey for couples. When getting ready to “tie the knot,” so many things run through your mind such as the social implications, family considerations, who do we seat next to each other at the reception, and of course, the financial cost involved and whether one can afford that white dress and big dream wedding! The aspects that we generally tend not to think about or leave to the last minute are the legal considerations and consequences of marriage.
Most civil marriages are preceded by an engagement and this, in itself, (unbeknown to many) is actually a legal and binding contract between a couple to marry each other. An engagement, like any other contract, can also be subjected to conditions, for example the marriage will only take place if the man earns a certain income or only if the couple’s parents consent thereto.

Marriage creates a consortium omnis vitae, which is basically an umbrella term for all the legal rights of one spouse to the company, affection, services and support of the other spouse, which includes the obligation to treat each other with decency, fairness and respect.

If a party to the engagement unlawfully breaches the agreement, the “innocent” party may withdraw and institute a claim for damages against the “guilty” party, depending on the circumstances.
From the above, one can see that the mere promise to marry holds legal consequences, so what does that mean for a married couple?
Marriage has wide-ranging legal consequences in respect of the couple, their respective estates and property.
Marriage creates a consortium omnis vitae, which is basically an umbrella term for all the legal rights of one spouse to the company, affection, services and support of the other spouse, which includes the obligation to treat each other with decency, fairness and respect.

Make use of the National Wills Week once a year when participating attorneys draft wills for free!

Marriage creates a reciprocal duty of support between a couple in respect of spousal maintenance, which means that a spouse who can afford it is obliged to maintain his/her spouse if said spouse is in need of support, financial or otherwise. Maintenance therefore includes the provision of money, food, medical care, clothes and accommodation to the spouse in need. This duty only terminates upon dissolution of the marriage, normally by death or divorce.
Marriage also creates a right of intestate succession between spouses who do not leave a valid will. If a spouse dies without a will, then the Intestate Succession Act will determine who the spouses’ heirs are when they die.
It is therefore so important for couples to consider drafting a will which clearly sets out their wishes in respect of who inherits from them so that they know that their assets will be left to the person of their choice.
Many non-legal institutions offer wills. However, I have found these documents to sometimes be generically made with a “one size fits all” approach. I strongly suggest that you consult with your attorney when finalising a will, and if you cannot afford it, make use of the National Wills Week once a year when participating attorneys draft wills for free!


Another consideration before saying “I do” is what type of matrimonial property system a couple wishes to regulate their marriage, as you cannot freely and easily change this system once married.
The most well-known and common system is marriage in community of property, which means that upon marriage, the spouses’ separate estates merge and become one undivided joint estate. Spouses therefore generally become co-owners of all assets (movable and immovable property) and liabilities (debts and loans) they have at the time of their marriage, as well as assets and liabilities acquired during the course of the marriage.
Our law presumes that all marriages are in community of property unless there is a valid antenuptial or postnuptial contract to the contrary.
If a couple wish their marriage to exclude the community of property and profit and loss, then a contract must be entered into between the parties before the marriage and registered with the Deeds Office (a contract can be entered into after the marriage, however this is normally an arduous and extremely expensive process which should be avoided if possible). This contract can also exclude assets and/or liabilities of a spouse and can include or exclude the accrual system as well as community of profit and loss.
The couple are basically free to include any provision in their antenuptial contract regarding the regulation of their marriage, as long as it is not prohibited by law or against morality or public policy etc.
If an antenuptial contract is concluded without the system of accrual, then it is generally seen as a complete separation of property between spouses. If the accrual system is retained, then a spouse (upon dissolution of marriage) will have a claim to share in the growth of the other spouse’s estate, according to a calculated formula, without there having been a joint estate during the marriage.
There are many advantages and disadvantages to the different matrimonial property systems and I would strongly recommend that a couple, intending to marry, consult with an attorney who practices in the area of family law. The cost of a consultation tends to far outweigh the sometimes costly ramifications on dissolution of marriage by death or divorce, especially if the parties have unwittingly or unknowingly subjected themselves to a system they never intended to apply to their marriage in the first place.

 

Northern KZN & Midlands Get It August 2018


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