A month ago my 23-year-old younger brother posted a meme that has been doing the rounds on social media and to paraphrase it said something along the lines of: “if you think you have problems just remember some people are married in community of property (COP)”
I decided it was time for me and him to talk about marriage contracts so I asked what his understanding of the statement was and he responded: “people are locked up in marriage”🤷🏽♀️
I then proceeded to ask if he thinks our mother would be better off without a CoP contract? (For context my mother married young as a fashion designer who relied on her skill for sustenance and my dad was the one with a more stable income.)
And he responded:” well … in that case, I guess it was good.”
My mom’s story is not uncommon, many women have to be protected by their husbands from their in-laws leaving them to start from scratch after their husbands pass.
While talking to my brother I remembered a comment I received on one of my posts about forgiveness about how ante- nuptial contracts(ANC) seem to be a sign of mistrust between partners, I’m paraphrasing.
When I was about to get married I had a similar conversation with one of my friends who did not think it made sense for me to get an ante-nuptial because I was Christian. Both well-meaning and expressing their concern based on the knowledge they had. Like my brother’s case, they were looking at the contracts from an extreme point of view (worst case scenario). What they did not consider is context.
An ante-nuptial contract is not preparation for divorce. It is a contract to protect your finances in the marriage not after. When two professionals get married and plan to go into business, COP is not the best option. A few years ago my husband was a full-time entrepreneur, when the business was not doing well I was very grateful we did not get married in community of property because it meant I had access to credit and most importantly the bank did not have a claim over my salary so we did not have to lose our house or go hungry. When my mom first heard we were planning to get an ante-nuptial contract she had a similar response to my friends, about it being about divorce. We had to explain our plans to remain separate entities as far as contractual obligations are concerned, my husband was looking to invest in a business and we decided I did not have to sign on the financial transactions and they were uncertain about the business so all the partners were going to protect their wives and use their wives as financial back up to recover. My mom was not convinced, so she decided to talk to her cousin who is a doctor, to get her perspective and she told her: “for this generation, you show you love her by protecting her through a contract. They are professionals and will not need similar protection as you did.”
It is interesting how CoP might be protection for your unemployed wife in the 90’s but it is the opposite for the 21st-century wife.
I’m hoping that by now you can see that context matters and we must not have a blanket judgement on either one of the options.
Now let me breakdown the different marriage contracts available so you can choose the one that works for you and your partner:
If you get married in South Africa the matrimonial property Act No.88 of 1984 applies.
For the purpose of this post I will discuss three options:
•COP- Joint estate = sum of your assets and liabilities + your spouse’s assets and liabilities
-Any changes in assets affect the joint estate
-Need written consent of both spouses for certain transactions
-Upon divorce the joint estate is shared equally between the two
•ANC (without accrual)- each partner retains their own estate
-Both parties have full contractual capacity
-One party is not liable for any debt of the other party
-If either party receives an inheritance or donation these assets will remain the exclusive property of the person who received it.
•ANC (with accrual)
-the principles are the same as the ANC without accrual the difference is that at the point of dissolution of the marriage the assets you have accrued during the marriage are divided equally between the parties.
We opted for the last option ANC with accrual which essentially gives you protection from your partner’s debts while securing the assets you acquire together. Another benefit to this is that we were recently shopping for land and we had to raise a deposit, our current property sits on my husband’s account and that meant I had a better chance of getting funded. The land may be in my name but it belongs to both of us because of the accrual clause I hope this is not confusing but gives some clarity.
But do make the choice that works for you, not out of fear but LOVE.