Christmas and Marriages

Christmas is a special time of the year. In Port Elizabeth it is no different with Christmas almost here, along with the holidays and special time with those we love. It is therefore not strange that at this special time of the year many loving couples look to formalise their commitment to each other, by getting married.
With this decision, one also needs to look at the very important need of making sure that when you get married, that this loving commitment does not become a mill stone around your necks; all because you did not do your homework. In modern South Africa getting married, should in my opinion always be preceded by executing a antenuptial contract, also known as a marriage contract or in the US as a "prenup".

Contrary to many peoples' perceptions having a antenuptial contract is not anticipating divorce. Let me just look at this objection for a moment. An antenuptial contract looks at the situation where the marriage is ended; this may be through death which eventually befalls us all and is a very real consequence of being alive. In the event of divorce, we need to consider that many marriages end in divorce for various reasons. The fact is that whether or by divorce or certainly by divorce; all marriages end. This is not being cynical, this is fact.
In the modern contest, being married in community of property is not just inconvenient; is downright dangerous. So often people who initially decided to get married in community of property; later decide to change to out of community of property. This is an extremely expensive step, relative to the relatively inexpensive step of registering a antenuptial contract; in addition post nuptial registration requires all you creditors to be give notice; which can be difficult when you have built up a business.
In December the month when traditionally there are the greatest number of weddings it is important to make sure that you enter your marriage with the best chances for success.

Cheaper Options - For an antenuptial contract is this even an option?

I am often asked which is better, to actually do a face to face meeting with a notary before signing a antenuptial contract or whether one can get a pro forma model from a stationery retailer or maybe even on the Internet, which is quite the vogue in the US?
Firstly, given the fact that I am a notary and have been for one for going on ten years in Port Elizabeth, it goes without saying that I would possibly not be in favour of pro formas and for slightly different reasons I would not do the remote Internet options.
Just to be clear, let me set out why I would not take either of the above options, if you agree that is great if not, please note that it is merely my personal views and I would never expect anyone to blindly follow advice without looking into it for themselves.
The signing (execution) of Antenuptial contracts is highly regulated because of the chances of fraud et cetera. It is therefore required that the document be signed before a notary ( a specially qualified and enrolled attorney). At this stage let me also state that one can do a power of attorney nominating a third party to appear before the notary and execute the antenuptial or marriage contract.
In certain circumstances this cannot but be avoided, but the reason why the legislature wanted it signed before the notary was the need to be explain the contents of the document and its implications for the couple. This is very important because it deals with money and assets and can be the source of a lot of unhappiness if not addressed properly at the outset.
Failure to fully answer all the questions at the outset can often lead to disagreements which at the end could even cause the erosion of the marriage itself.
In my experience, it is preferable that the notary is not the attorney of either party as this helps avoid any bias intentional or unintentionally and helps increase the level of trust.
I the period of just short of a decade that I have been executing antenuptial contracts I have found that through experience people need that face to face interaction; preferably in a relaxed environment; where they can feel safe to ask questions and have them answered honestly and where both parties are present.
As an additional safeguard the parties are free to have their own legal representative review the contract before signing it; thereby further increasing the safeguards; where this is indicated or where the parties feel that they need further reassurances.
The cost difference between the contracts offered by our offices in Port Elizabeth; are only nominally more than those commonly offered on the Internet. In addition, we also add other value adding advice which almost totally negates the price difference.
Often one is also faced with the fact that one often gets one pays for when it appears substantially less; in the instant cases, the documents my be fine but the real peace of mind I have have comes from the personal reassurance of any unique concerns and the open honest consultation in a safe and relaxed environment; where you can feel free to ask any question or raise any concern.
The value of a face to face meeting when it comes to antenuptial contracts cannot be overstated enough, so the question one must ask oneself is, is the nominal saving worth the risk?

Marriage is a major step, no matter where you live. Here in Port Elizabeth, South Africa - marriage is no different. What one has to remember that your antenuptial contract, prenuptial or marriage contract is essential to ensure that your marriage is a marriage out of community of property.
It is vital to realise that this may be the most difficult part of an otherwise fairy tale run up to your wedding. In Port Elizabeth, South Africa where as a whole most people are relaxed; even here going to see the notary or a notary public; this is because when all is said and done, this is the one part of a wedding or marriage which deals with that difficult, awkward word - money. Most people want to ignore it and concentrate on the romantic and exciting stuff.
It is vital to realise that although it might be something which is difficult, its something that you have to deal with, not just for your sake but also for the sake of both your futures. In an ever challenging work environment more people are being forced into business it it not just convenient to be married out of community of property; its essential.
Before you say the "I do's" is the one time that you can choose to make the election. Most people who get married in community of property, sooner or later realise that practical considerations make it important to change to out of com. It costs a lot to change after your marriage is concluded.
This is because one has to apply to the High Court, which requires all your creditors being given notice and then you still need an antenuptial. I always arrange an initial meeting with the couple, to make sure that they are given all the facts and a relaxed environment, allows them to feel at ease and ask questions, which I have found helps everyone feel more at ease before deciding on the particular version and and specific terms.
As a notary of many years experience, I cannot emphasise it enough, that both spouses feel at ease with the antenuptial contract, in addition it is important that it is executed well in advance of the wedding.

Getting married in community of property (Port Elizabeth, South Africa)

Getting married in community of property, in South Africa, is not optimal.
Why do I say so?
Another attorney trying to rustle up some extra cash? After all, we are going to be married joined together as one, have children - from this point we shall be a unit a model family; a family of love. It is to be noted that at this stage love and the upcoming nuptials are causing you to have butterflies in the tummy, the two of you are the centre of activity - life is great.
But let's look at the practical consequences and maybe some examples.
Getting married in community of property is definitely the most affordable option - its cheap because its free, there are no formalities - no need to see a notary - it seems the obvious choice. Then we say the "I do's" and you are married - and as sure as the sun will set on this special day - the next day will brings the practical realities of this marriage regime.
Everything you own on both sides are bound together as one estate, with some very serious consequences. Please note that I will not go into all of them, that you can discuss with your notary, but some of the most common are the following:
Joe & Sally get married, Joe is a prudent savings orientated individual and has in a short time saved a considerable amount of money despite earning a relatively modest salary - Sally is a high earning professional but spends money as if there is no tomorrow and she is always late paying accounts - due to the new Credit Act, her paying record will now affect Joe, which will come as a surprise when they try to buy their dream home. The worst case is where either party are sued in their private capacity - then the combined estate is going to be raided by the judgement creditor. I will not go into administrations, sequestrations and the like - save to say its not pretty.
Most people in the new South Africa are forced to open businesses due to the realities in South Africa - when you do so, bear in mind that most businesses fail - when it does - what about the joint estate?
I am  often approached by couples married in community of property who now want to be out of community of property. This is a formal procedure through the High Court and costs a lot (more about this later)
It is to be noted that here in Port Elizabeth, South Africa - I often find that few people truly appreciate the need for a marriage / antenuptial contract until it is too late.
If you really want a marriage with the same effect as marriage in community of property with an antenuptial contract - contact me and we can help you.
In my personal view nobody should marry in community of property in South Africa - but that's my personal view.

Ways to get married in Port Elizabeth, South Africa

In South Africa the principal ways to get married are:

1. In community of property;
2. Out of community of property - including the accrual system;or
3. Out of community of property - excluding the accrual system. 

I would like you to remember that these blog posts are not legal advice - but it may in some simply way help you better understand your options, when thinking of getting married. It is important that you consult with a notary or an attorney to obtain proper legal advice.

In my practice most couples want one of these three options, in future posts I shall be looking at these various options.

It is important to note that should you want a marriage out of community of property - you need an antenuptial contract to be signed before a notary, before you get married, if not you are married in community of property.