How much does a marriage contract cost?

Understanding Marriage Contract Costs and Their Implications in South Africa

Getting married is a significant milestone, and one important consideration is the type of marriage contract you choose.

In South Africa, the cost for drafting and registering an antenuptial contract is R1495-00, as per the guidelines from the Legal Practice Council.

This fee covers the drafting, execution, notarial attestation, and registration of the contract in the deeds office, including consultations with an attorney to discuss your specific needs.

The Importance of a Marriage Contract

When planning your marriage, it's crucial not to be deterred by the initial cost of an antenuptial contract.

The financial impact of selecting the wrong marital regime can be much more severe in the long run.

Investing in professional legal and financial advice upfront can save you from future complications. 💡

Managing Your Assets

An essential aspect of your marriage contract is deciding what happens to your assets post-marriage.

• In Community of Property: All assets (and liabilities) you and your spouse owned before and acquired during the marriage merge into a joint estate. This means every asset is shared equally, but so is any debt.
• Out of Community of Property: Each spouse maintains their own separate estate, including assets acquired before and during the marriage. The accrual system can be included in the contract to balance asset growth upon marriage dissolution.

For property ownership, couples married in community of property jointly own their home, requiring spousal consent for transactions.

Conversely, those married out of community can buy and sell property independently, with shared ownership still an option for practical reasons.

Handling Debt

Debt is a significant factor in marital breakdowns, so understanding how it's treated in different marital regimes is vital.

• Community of Property: Both spouses share all debts, including those incurred before the marriage. This means you could be liable for your spouse's debt, even if you had none before marriage.
• Out of Community of Property: Each spouse's debt remains separate. With the accrual system, debt impacts the calculation of the estate's value upon marriage dissolution. If excluded, each spouse is solely responsible for their own debt, with no impact on the other's estate.

Impact of Insolvency

In a community of property marriage, if one spouse is declared insolvent, the other is too, due to the joint estate.

An out of community of property marriage offers protection, as one spouse’s insolvency doesn’t affect the other’s estate.

The accrual system can impact the share of the accrual but provides some protection under Section 8(1) of the Divorce Act.

Divorce Considerations

Divorce proceedings vary based on the marital regime:

• Community of Property: The joint estate is equally divided, unless a forfeiture order is applied due to one spouse unduly benefiting.
• Out of Community with Accrual: This is seen as more equitable, sharing the growth of each estate during the marriage. The commencement value of each estate at the marriage's start is recorded in the antenuptial contract, ensuring fair distribution upon divorce.

Without the accrual system, divorce can be inequitable, especially if one spouse is a stay-at-home parent, as they might not have had the opportunity to increase their net worth.

Dealing with Death

The type of marriage contract also affects how estates are managed upon death:

• Community of Property: The joint estate is wound up, with the surviving spouse entitled to 50% of the net estate. The remaining estate is distributed according to the will or intestate succession laws.
• Out of Community without Accrual: The deceased’s estate is managed separately, with no impact on the surviving spouse’s estate.

With the accrual system, the estate's growth during the marriage is shared equally, calculated from the commencement values recorded in the antenuptial contract.

The executor will determine the accrual share, ensuring an equitable distribution.

Choosing the right marriage contract is a vital decision that can significantly impact your financial future.

Consult with a legal expert to ensure your contract meets your specific needs and protects your interests. 💍📜