Starting a family is an exciting journey, but it inevitably comes with important legal considerations and responsibilities. Understanding the intricacies of family law in South Africa is essential for growing families working to build a foundation for their future. While family law can be complicated, our skilled attorneys at BDE Law have some helpful tips to give you an understanding how to navigate your legal situation.
Legal Intricacies of Marriage: The Importance of Antenuptial Contracts
While it’s natural to trust your spouse-to-be and you may feel awkward in having to discuss entering into a contract before tying the knot, the implications of not doing so can have dire legal consequences. Having an Antenuptial Contract does not just have implications for divorce, it also protects your assets during the course of the marriage.
If you don’t enter into an Antenuptial Contract, your marriage will by default be in community of property. Essentially this means that everything is shared between both spouses, which may seem to be a good idea but this sharing does not only pertain to assets, it also includes debts. You may therefore find yourself in a position of being liable for a debt incurred by your spouse and the creditors can attach your assets. Your contractual independence will be limited and you will require your spouse’s consent for certain transactions. Lastly, if one of you should pass away, your estate as well as your deceased spouse’s estate will be wound up because it is a joint estate. This is not ideal as you will not have access to your estate and funds while the joint estate is being wound up. However, if you enter into an Antenuptial Contract, the marriage will be out of community of property. This means that each spouse will retain separate ownership of their assets and liabilities, both before and during the marriage.
There are two types of Antenuptial Contracts:
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Out Of Community Of Property With Accrual
In the case of marriages out of community of property with accrual each spouse maintains separate estates, but they share in the growth of their estates from date of the marriage and for the subsistence during the marriage.
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Out Of Community Of Property Without Accrual:
In the case of marriages out of community of property without accrual the assets of each spouse, whether acquired before or during the marriage, remain separate are not shared and each partner has a separate estate.
Each of the above have pros and cons and it is important before deciding on which is best for both of you that you obtain legal advice and guidance. At BDE Law, our attorneys can help you navigate the complexities of your choice to make sure you embark on your next chapter feeling well-informed and prepared.
Plan For Your Future: Estate Planning and Drafting of Wills
The next consideration is to consider your estate plan and getting a will drafted. While estate plans and drafting wills may not seem like a priority during the early stages of your marriage, proper estate planning is essential to ensure the protection of your loved ones in the future. While the future can be unpredictable, arranging and managing your assets ensures an effective distribution in the event of your death. If you would like more detailed information on this and drafting your will, read our full article, 5 Reasons to Hire an Attorney to Draft Your Will or contact one of our expert attorneys today for a more in-depth consultation.
While the legal considerations of family law may seem overwhelming, it is important that you are prepared as you commence on your new and exciting journey. Contact us at info@bdelaw.co.za to get started.
