Marriage is a serious step that will change your life significantly, particularly in terms of finances and wealth management. In South Africa, you can choose from a variety of marital regimes that regulate financial affairs during marriage. These include an antenuptial contract (ANC), community of property (COP), Shari’ah and polygamous African marriages. Each regime has unique characteristics that affect debt liability, inheritance, insurance needs, investments and divorce.

Choosing a marital regime is an important decision with major implications for your and your partner’s financial affairs. It is important to discuss which regime is suitable for your needs as a couple. Here are some tips on how to have a productive conversation about choosing a marriage regime:
 

• Start the conversation early
  It is essential to have this conversation well before your wedding day. This will give you enough time to explore your options and make an informed decision.
  
  
• Do your research
  Educate yourself about the different marital regimes and their implications for your financial affairs. This will help you articulate your preferences and concerns.
  
  
• Be open and honest
  It is important to be open and honest with your partner about your financial goals and needs. Discuss any concerns you may have and listen to your partner’s concerns as well.
  
  
• Seek advice
  Consider consulting with a legal and financial expert to provide guidance and advice on which regime suits your needs. Talk to married friends and family about what decisions you are trying to make and see if they feel comfortable sharing how they had these conversations with their partners.
  
  
• Consider your future goals
  Think about your long-term financial goals and how the marital regime you choose can help you achieve them. Consider the impact on your estate planning, investment planning, and insurance needs.
  
  
• Consider your circumstances
  Each couple’s circumstances are unique, and it is essential to consider how your circumstances will affect your choice of the marital regime. For example, an ANC without accrual may be more appropriate if one partner has significant debts or liabilities.
  
  
• Compromise
  Choosing a marital regime is a joint decision that requires compromise. Be willing to consider your partner’s preferences and concerns and work together to make a decision that works for both of you.
   

The types of marriages in South Africa

Antenuptial contract

An ANC is the most common marital regime in South Africa. It involves a contract that is entered into by the couple before marriage, and it determines how their assets and liabilities will be managed during the marriage. There are 2 types of ANC: without accrual or with accrual.

In an ANC without accrual, each spouse retains control of their own assets and debts during the marriage. Your assets and liabilities are not merged, and you are not liable for each other’s debts. In a divorce, each spouse retains the assets and liabilities they have accumulated individually during the marriage.

In an ANC with accrual, each spouse is still not liable for the other’s debts, but the couple agrees to share the growth of any assets that occurs during the marriage. This means that each spouse retains control of their assets, but in the event of a divorce, the assets accumulated during the marriage are divided equally between the spouses.

Community of property

The community of property (COP) regime is the default marital regime in South Africa, which means that if a couple does not sign an ANC before getting married, they will automatically be married in COP. This regime involves merging the couple’s assets and liabilities into one joint estate. Both spouses have equal rights to the assets and are equally liable for the debts.

In case of a divorce, the couple’s assets are divided equally between the spouses, regardless of who acquired them. This regime can be risky for individuals with significant debts or liabilities, as their spouse will also be liable for those debts.
 

Shari’ah marriages

Shari’ah marriages are governed by Islamic law and are recognised in South African law. In a Shari’ah marriage, the husband is the head of the household and is responsible for providing for his wife and children. The wife is entitled to receive maintenance and support from her husband, and any assets acquired during the marriage are considered joint property.

In the event of a divorce, the wife is entitled to receive maintenance for a certain period, and the assets are divided according to Islamic law. Shari’ah marriages do not have the concept of COP, and each spouse retains control of their own assets and debts.
 

Polygamous marriages

Polygamous marriages are recognised in South African law, but they are not recognised under the Marriage Act. This means that they are not registered with the Department of Home Affairs, and they are not considered legal marriages. However, they are recognised under customary law, and they are governed by the Recognition of Customary Marriages Act.

In a polygamous African marriage, the husband is allowed to have multiple wives. Each wife has equal rights to the husband’s assets, and the husband is responsible for providing for all his wives and children. In the event of a divorce, the assets are divided according to customary law, and each wife is entitled to an equal share.
 

Financial planning considerations when getting married

When choosing a marital regime, it is crucial to consider the financial implications of the different options. For example, if you have significant debts or liabilities, consider an ANC without accrual to protect your spouse from liability. On the other hand, if you want to share in the growth of your assets during the marriage, an ANC with accrual may be more suitable for your needs.

When it comes to estate planning, it is essential to consider how your assets will be distributed in the event of your death. If you are married in COP, your spouse will automatically inherit your half of your combined estate. If you have specific wishes for how your assets should be distributed upon your death, it is vital to draw up a will that reflects these.

Investment planning is also an important consideration when choosing a marital regime. If you are married in COP, both spouses have equal rights to the assets, which can make it difficult to manage investments. In this case, choosing an ANC without accrual may be more appropriate, where each spouse retains control of their assets and can manage their investments.

Insurance needs are also affected by the marital regime. For example, if you are married in COP, your spouse may need to be added as a beneficiary on your life insurance policy. If you have an ANC without accrual, your spouse may not need to be added as a beneficiary, as they will not be liable for your debts.

Lastly, divorce is a complex and emotional process, and the marital regime you choose now can significantly affect the financial outcome of a divorce. People change. Things don't work out sometimes. If you are married in community of property, both spouses are entitled to an equal share of the assets, regardless of who acquired them. In an ANC with accrual, each spouse retains control of their own assets, and the assets acquired during the marriage are divided equally.

It is important to consult with a legal and financial expert before deciding which marital regime suits your needs. This will ensure you make an informed decision reflecting your financial goals and needs.