Tying the knot? Which knot?

by Jessie

Let’s speak marriage. And let’s speak what’s-mine-is-yours-baby.[1] I’m sure you have heard of a prenup (even if it was only after listening to Gold Digger.[2]) but why does Kanye want that in his song? And if you don’t want a prenup, then what are you getting? And does this matter?

Now Kanye also says, “having money isn’t everything, not having it is”. So I’m going to blow that quote right out of context and end this Kanye analogy once and for all. A prenup is more commonly known as an Ante Nuptial Contract (ANC) (or an out of community of property marital regime) and is one way of sorting out your property when you get married. When you get married you can share everything with your spouse, some things, or nothing.

An ANC is when you keep your estates[3] separate. Basically, you’re married but you still own your own property. You can co-own things like a house, but what’s-mine-is-yours legally doesn’t apply here. So in the event of a divorce, each party keeps their stuff as normal. In Kanye’s case, he’ll keep his money and royalties and everything that is his.

It’s a clean break.

The opposite of this is the default marital property regime in South Africa- getting married in community of property. This means that when you get married your estates are combined to form a joint estate. This means that you. Share. Everything. Equally.

That Persian carpet you got from your great-gran? You only own half of it.

His golf clubs? Half yours.

House. Cars. Your wedding dress. This also means that you can’t just do anything with your money. You need permission to do some things with the joint estate- like buying a car or selling your house.

And in the event of a divorce, everything is split right down the figurative middle. This is where it gets messy.

Then there’s the last option. A combo, if you like. It’s called being married out of community of property with accrual.[4]

What?! This just means that during the marriage your estates are separate, and you live as though you have an ANC. But then, at the end of the marriage, the extent to which each of the estates has grown is looked at. As a stereotypical example, if the wife was a stay-at-home-mum and didn’t work during the entire marriage while the husband worked away, her estate would not have grown whereas his would have.

In this case, the growth in his estate during the marriage is calculated, and that is then split and shared equally among the spouses, upon divorce. The accrual is shared.

The Law Society of South Africa have made a brochure, with a picture of an engagement ring and everything.

Of course, this important choice won’t affect you if you just live Happily Ever After.

Do that, rather.

[1] For the purpose of this discussion, no pet names like ‘baby’ are allowed. Ever.

[2] In the 2005 single by Kanye West in verse 2: ‘we want prenup!’. http://www.azlyrics.com/lyrics/kanyewest/golddigger.html

[3] Property- be it money, a car, a boat. You own it, it’s your property.

[4] This just means the assets obtained during the marriage, or the growth of an estate.