Legal Talk

Amidst all the things that normally take precedence during the wedding planning stage, the issue of type of marital regime should be on top of the wedding list of the intended couple. Sadly though this all-important decision is relegated to an after-thought, often with disastrous consequences.

All marriages, which are not registered by an Ante-Nuptial Contract (ANC), automatically default to an "in community of property" marriage. ANC's, which are registered by a Notary, can be either with or without the accrual system. What marital system may work for one couple, may not necessarily work for another. The type of employment or career path the couple wish to pursue, the risks associated [when viewed from the perspective of creditors] with that chosen career, what assets the couple own are some of the considerations a notary public or attorney will look at and will guide you towards making the correct decision in this regard. Sometimes the couple may decide that one of them would take on the full time role of stay at home mom (or dad) and raise the family. More often than not though, both parties would want to continue to earn a separate income and jointly contribute towards the marital expenses.

A woman who was married by ANC without the accrual system, tried to get the ANC set aside, claiming it was tainted with fraud. She said that her husband used undue influence in getting her to sign the contract. She told the court that she and her husband had orally agreed that they would get married by ANC with the accrual system. This is where all assets, which both parties have accrued for the duration of the marriage, is valued and shared on termination. The wife wanted the court to set aside the ANC and to declare that her marriagewas in community of property. To succeed in such a claim, the wife needed to prove to the court that the ante-nuptial contract was indeed induced by undue influence. The wife claimed that her husband acted in a fraudulent manner, in getting her to sign the agreement. The husband denied this, saying she was fully aware of all the terms of the ante-nuptial contract. The court rejected the wife's claims and said that there was no basis to justify setting aside the ante-nuptial contract. The judge however was not impressed by the husband's overall conduct and ordered, that amongst other things, he pay maintenance to the woman for a period of 5 years after the divorce.

Once a particular type of marital system has been decided, it cannot be undone without the court's consent. This will come at a cost and could cause much inconvenience and perhaps even prejudice. Taking the time to ensure that you have all the necessary information so that you make an informed decision in this regard cannot be over emphasized. To ensure parity and equity between the parties, making the right decision in your choice of marital regime becomes critical. It makes sense to see an attorney or better still to consult with a notary public and get proper legal advice about which marital regime would be best suited for you.

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