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Do You Need A Marriage Contract?

Mar 10, 2008
By Ridwaan Desai,
Attorney Conveyancer and Notary Public,
practising as Desai and Associates

Marriage is a union between two people which in Islam is a very sacred act, which completes half our faith. However, because we are living in a country where the Laws are not Islamic, hence we need to ensure that we are aware of the consequences that follow once we are married.

Currently, as the Law stands, when one enters into an Islamic marriage (Nikah), that couple is not fully recognised as married legally. To complete the process the couple will need to solemnize (legally register) their marriage at Home Affairs. The problem that now arises, is that they are not fully aware of the options they have when solemnizing their marriage, to compound matters, the personnel at Home Affairs are none the wiser.

There are three matrimonial property regimes: marriage in community of property; marriage out of community of property and marriage out of community of property, subject to the accrual system.

If you get married without a marriage contract, your marriage will automatically be in community of property. Should you decide to get married out of community of property, you need to enter into an antenuptial contract (ANC), which is drawn up by a Notary and then registered in the Deeds Office. If you enter into an ANC, the marriage will automatically be subject to the accrual system, unless you specifically exclude this from your contract.

How do I choose?
1. Marriage in community of property
Marriage in community of property creates an economic partnership between the spouses. All the assets and liabilities are merged in a joint estate in which both of you own equal shares.

You both have equal powers of management of the estate and may perform any legal transaction without consent from your spouse. Certain transactions, though, such as selling or mortgaging property, purchasing property or pledging assets to be held as investments, have serious financial consequences and require the written consent of both you and your spouse.

On dissolution of the marriage, the estate is divided equally between you and your spouse. If your spouse dies, his share will form part of his estate and you will retain your half share in your name. Should you get divorced, the estate will be divided equally between the parties, and any property will be transferred to your separate names.

There are obvious advantages if you contribute less to the marriage financially, because you have an equal share of the estate. However, you run the risk of losing everything if your husband suffers a financial setback, since all your assets and liabilities are pooled. If one of you embarks on a business venture that fails, you’ll both be plunged into financial hardship or ruin, even if only one of you was responsible for incurring the debts. A marriage in Community of Property essentially means that you and your spouse become one person.

Next Column: Marriages out of Community of Property
For any queries/questions please e-mail: legal@desaiattorneys.co.za

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