As anyone who has planned a wedding will tell you, “location” is one of the more important factors to consider. While it is tempting to look outside of South Africa’s borders for a setting that is perfect for your special day, one might be cautioned against letting the golden sunset blind you to what’s missing in the picture: an ante-nuptial contract.
When romance is in the air, it’s easy to forget some of the more practical aspects of a marriage. Matrimonial property regimes play a vital role in all marriages, and it’s important to make sure that your union will be guided according to principles that suit you and your spouse. There are many consequences stemming from the matrimonial property regime, including how assets will devolve in the event of death or divorce (however unlikely it may seem), the autonomy of each spouse to enter into various types of contracts, and whether or not spouses are liable for one another’s debts.
In South African law (and unless the parties specifically contract otherwise) the default position of all marriages are “in community of property”, meaning that all property owned by the parties at the time of the marriage, or acquired during the marriage, will be merged into a single, joint estate. Each spouse is then entitled to an equal share of this joint estate, irrespective of their contributions to it. Upon death or divorce, the estate will be split in half, and each half dealt with separately. In the event that one spouse commits an act of insolvency, the joint estate will be at risk of sequestration.
However, there are many countries where marriages are, by default, “out of community of property”, reversing many of the above consequences.
You could therefore be forgiven for thinking that by holding your marriage in such a country, your marriage regime would follow the marriage regime of that country (instead of following South Africa’s default marriage regime) and would be one entered “out of community of property”. Unfortunately, this is incorrect.
According to the seminal case of Frankel’s Estate & Another v The Master & Another, a marriage will be governed by whichever matrimonial property regime is prevalent in the country where the husband of the marriage is domiciled. A person’s domicile is the principal place of an individual’s residence – colloquially, where he or she considers to be home. The effect of this well-established legal principal (domicile), while not necessarily conforming to modern gender roles, is that the location of the marriage is entirely irrelevant. The only consideration is where the husband is domiciled at the time of the marriage.
Taking into account the intricacies discussed above, it’s no surprise that couples are often taken aback to return from their overseas weddings only to discover that their marriages are governed by South African law, and not the foreign property regimes they intended to be bound by. In such an event, failure to register the appropriate notarial deed prior to the marriage will have potentially disastrous financial implications, placing unnecessary stress on the marriage itself.
e.g. A couple gets married in Mauritius, whose default marriage regime is “out of community of property”. The husband however is domiciled in South Africa (as is the wife). Their marriage will therefore be governed by South African marriage regime, being “in of community of property”. The parties will now have a joint estate instead of separate estates.
Fortunately, there is a process by which parties may apply to the High Court to have their matrimonial property regimes amended after the marriage, by way of the late registration of an ante-nuptial contract.
The application is brought ex parte, and is fairly straight forward, but does require full disclosure of both parties’ assets and liabilities in order to ensure that there is no prejudice to any creditors. The application also requires approval from the Registrar of Deeds, and must be advertised comprehensively, and as such is quite time consuming. Good cause will have to be shown to the courts for the application to be granted, and a mere change of heart following the nuptials will be unlikely to persuade the court.
With wedding season around the corner, and distant venues beckoning, husbands and wives to be are strongly advised to cut through the red tape at home before boarding the plane. If in any doubt about the legal consequences of your marriage, don’t leave anything to chance and contact your attorneys as soon as possible to clear it up.
Note: The original of this article appears on Ashersons Attorneys website, here.