The big day is looming. There are a hundred and one arrangements to be taken care of, honeymoon travel plans, living arrangements, not even to mention the always controversial table plan at the wedding reception! But what am I forgetting? Why do I have that nagging feeling that I’m missing something?
Underneath the surface of all the wedding hype there lies the legal principles that underpin every marriage. As a union to which our law attaches specific consequences, the legal aspects of every marriage must be understood. In addition, the process of getting married, buying and selling property and planning your future together bring even more legal aspects to bear on this tipping point in the lives of two people. So why not do things right from the beginning and ensure that your celebration is not a day resulting in unforseen consequences, unagreed costs and disputes but a day of celebration that sets the tone for the rest of your married life.
Generally there are four main legal aspects which couples considering marriage must pay attention to in their marriage planning:
1. Antenuptial Agreements
2. Estate planning
3. Property matters
4. Contracts
An Antenuptial Contract (ANC) is a contract that couples can enter into before marriage to determine the matrimonial consequences of their union. In other words, through an ANC they can determine what will happen to their respective assets upon death or dissolution of the marriage. If a couple does not enter into an ANC the automatic position is that they will be married in community of property. This means that their respective estates are pooled and in essence become one with both spouses having an equal stake in this joint estate. To change this after the wedding will require a costly court application. By concluding an ANC the couple can agree to be married out of community of property (their estates remain fully separate) or out of community of property with the accrual system (separate estates with parties sharing in the growth of their respective estates). An ANC must be concluded before an attorney who is also a Notary Public. Importantly this election must be made before you get married, so make sure that one of your wedding checklist items is to make an appointment with an attorney who can explain the different consequences of the available matrimonial regimes as well as help you draw up a proper ANC.
Another matter almost equally as important as an ANC, is proper estate planning. The first step of estate planning is the election of your matrimonial property regime. The next step is the drawing up of a valid will for each spouse or a joint will for the couple. Estate planning through a properly drafted will can help provide for future financial security for loved ones for the future and will prevent disputes and uncertainty relating to inheritances. It may also be the situation that one or both of the parties getting married were married previously. In this case it is particularly important to ensure that the wills are drafted in such a manner as to ensure that the wills are up to date so that the wishes of each party will be carried out correctly should he or she pass away.
In anticipation of the wedding, you may wish to consolidate your properties by buying a new family house, leasing out your current house or even getting rid of the no longer needed ‘bachelor pad’. In order to ensure that your interests are protected and that the sell or lease arrangements are fair and reasonable, ensure that you obtain advice and assistance on how to best go about this from an attorney specialising in property matters. This process can also be time-consuming so make this another of your important checklist items.
Weddings have also become expensive, with couples and parents paying thousands of rands to wedding coordinators, venue hire, catering, dj’s, musicians, accommodation and much more. So many couples often find themselves in the situation where the services budgeted for inevitably cost far more than was expected or even agreed upon - “that was always separate”, “prices have changed”, “your numbers have grown” etcetera. Yet, no contract was entered into, or the pro forma contract is slanted in favour of the service provider. But the wedding has to go on, so the couple end up just paying. A contract drafted by an attorney or advice regarding a service provider contract can go a long way to protect a couple against unplanned escalations and financial consequences. Some attorneys even offer a deposit service, where the deposits due to service providers are paid into an attorneys trust account, thus protecting the prospective couple from losses in situations where the vendor does not perform, disappears or even goes insolvent before the event.
The big day is coming! Just remember to add legal matters as an item on your to-do list to ensure that you provide a solid legal foundation for your future.