IN SICKNESS and in PRENUPS

Getting traditionally married? Lawyer explains when it is best to choose your marital property regime

It’s a fight almost to the proverbial bitter death. These people were once head-over-heels lovers, who swore before a crowd of witnesses that they’d have each other – to love and to hold – from this day forward, for better, for worse, for richer and for poorer – are now locking horns in a fierce divorce battle. And one of them, most of the time, is definitely trying to get richer once the divorce goes through while the other gets poorer.

It’s something few couples want to think about when they plan to walk down the aisle, to be joined together in holy matrimony and all those nice things: marriage contracts.

Certainly, when couples are concluding customary weddings the idea of pulling out a contract about the division of marital property if they split up can seem like heresy. But not doing so could leave you being the only one who’s the worse for wear – worse, poorer and no spouse in sight – if you divorce.

People going into customary marriages should choose their matrimonial property regimes before they conclude the traditional nuptials process, according to attorney Lwazi Dekeda.

There are three types of matrimonial property regimes in SA, he explains, namely marriage in community of property, marriage out of community of property without the application of the accrual system and marriage out of community of property with the application of the accrual system. “In order for one to get married out of community of property, with or without the application of the accrual system, you need to sign what is called an antenuptial contract. A prenup is an American term, but it is one and the same thing,” Lwazi tells Drum.

“A marriage contract must be signed before the conclusion of the customary marriage processes which is generally lobola, taking the makoti to the in-laws and there is a celebration.

“Once you consider yourselves, and the families also consider you to be married in terms of customary law and you have not signed an antenuptial contract, then you will be married automatically in community of property.

“Similarly, once you get married in front of a marriage officer at the department of home affairs or you get married in front of a pastor without signing an ante nuptial contract, then you are automatically married in community of property.”

The law recognises customary and civil marriages. And for those who choose to marry out of community of property, that is not a measure of a couple’s love for each other, Lwazi says

“Yes, there may be people who marry out of community of property because they are not certain about the marriage or the person they are marrying or what lies ahead. But that is an issue far apart from the type of marriage one should choose.

“Any marriage built on shaky ground is a marriage being set up for failure. If you have an ante nuptial contract because of that issue, then there are issues that go far deeper.”

Lwazi says couples can change the type of marriage they are in, but warns it’s an expensive process.

“The law does allow for a couple to change their marital regime from in community of property to out of community of property by registering what is called a postnuptial contract. But the couple would have to go through the high court.” ●

“A MARRIAGE CONTRACT MUST BE SIGNED BEFORE THE CONCLUSION OF THE CUSTOMARY MARRIAGE PROCESSES, WHICH IS GENERALLY LOBOLA”