Meumann White News

FAMILY AND DIVORCE LAWYERS IN DURBAN AND SURROUNDS

Frequently asked questions:

1.         I’m getting married. Do I need an Antenuptial contract?

(Often, and erroneously, called an “anti nuptial”, “pre nup” or “pre nuptial contract”)

 

This depends on your circumstances and your needs.

 

In community of property:

If a couple does not enter into an antenuptial contract before they are married they will automatically be married in community of property. This means that everything either of you owned prior to the marriage and anything that either of you acquire during the marriage becomes joint property.

 

In a nutshell, your two separate estates become one joint estate.

 

You are both also jointly liable to your spouse’s creditors. If, for example, your spouse’s business fails or she/he incurs large debts, the joint community of property estate will be liable for these debts.

 

Out of community of property (without accrual):

To be married out of community of property the couple will have to enter into an antenuptial contract prior to the marriage in terms of which they agree that they wish to be married out of community of property.

 

Both parties will retain their own separate estate, and there will be no division of assets on the death of either of the parties or upon divorce. However, neither spouse’s creditors will have a claim against the others estate (except in limited circumstances)

 

We would strongly recommend that you request us to draft your will simultaneously with the antenuptial contract.

 

Out of community of property with accrual

Again, the couple will have to enter into this agreement prior to the marriage. As with the marriage out of community of property, you will retain your own separate estates, and will enjoy the same protection from your spouse’s creditors.

 

Either party can exclude assets and stipulate a commencement value of their estate in the antenuptial contract. All assets which are not excluded must be considered upon the death of either of the parties or upon divorce.

 

Simply put, upon death or divorce, the assets which were not excluded in the antenuptial contract are subject to the accrual.

2.         I am already married; can I still enter into an antenuptial contract?

You can in limited circumstances and this is called a postnuptial agreement. However, this will require an application to the High Court. There are certain requirements which you must meet to be successful with such an application and we would suggest that you contact our offices for further advice and in order for us to provide you with our opinion on your prospects of success.

 

If you intend entering into an antenuptial contract it is strongly recommended that you do so prior to your marriage.

3.                  I have been living with my boyfriend/girlfriend for some time. Are we considered to be parties to a common law marriage?

At this stage our law does not recognise the concept of a common law marriage. A draft “Domestic Partnership Bill” has been prepared to deal with this, but at this point there is no indication as to when, and if, this will be signed into law.

 

You can attempt to have the court declare a universal partnership to deal with the partnership assets, but this is notoriously difficult and we would suggest that you arrange to meet us in order to discuss the feasibility of such an action in your circumstances.

4.         I want to divorce my spouse, what should I do?

There are many issues which need to be considered, including the division of the joint estate (if married in community of property) and your and your spouse’s rights and responsibilities in respect of any children born of the marriage.

 

We would suggest that you contact our offices and arrange to meet with us in order that we can fully advise you of your rights.

 

You will need to bring your marriage certificate, antenuptial contract if you have one and your identity document to the initial consultation.

5.         What am I entitled to upon divorce?

This depends on a number of factors:

·                     Whether you are married with an antenuptial contract;

·                     The duration of the marriage;

·                     Your and your spouse's assets, liabilities and expenses;

·                     The reasons for the breakdown of the marriage;

·                     Your and your spouse's respective ages.

This is not a closed list, and there are other factors which may have an effect on the proprietary consequences of the marriage.

 

6.         What about the children?

There are many factors which must be considered when dealing with this issue. The rights of the child are dealt with by the Children’s Act.

7.         Who must maintain the children?

Both parents have a duty to maintain the children. The amount of maintenance which each parent is liable for is based on that parent’s earnings.

 

8.         Will I be able to maintain my relationship with my children if they do not reside primarily with me?

The "non custodian parent" will normally have rights of contact to any minor children born of the marriage. If the parties to the divorce are unable to agree on these rights of contact the court will make an order in this regard. This order is usually based on the recommendation of the family advocate.

 

For further information and assistance; or to set up a consultation contact:

Haydn Friis or his secretary, Cookie Moodley on (031) 202-9245

 

 

 

Written by: Haydn Friis