Getting Married

Planning a wedding can be stressful - not planning a marriage can be catastrophic. An engaged couple must make a decision before they marry as to the desired proprietary consequences of their marriage. They must ensure that they will each have the financial freedom and protection they require once they are married.

The parties can choose to marry In Community of Property or Out of Community of Property. The full consequences of this choice should be explained by an attorney, preferably one who is also a Notary. This information does not purport to be a comprehensive exposition of the law.

Marriage in Community of Property

Parties choosing this option do not have to comply with any formalities prior to the wedding. The parties combine their separate estates to create a single joint estate i.e. each party owns an undivided half share of the combined assets and is equally liable for the debts of the other.

During the marriage, the parties have equal power to bind the joint estate (and therefore each other) contractually, without the consent of the other. There are, however, certain acts for which the other spouse's consent is necessary e.g. sale, donation or mortgage of immovable property, entering into credit agreements, signing surety, donation of assets belonging to the joint estate, and the sale or donation of furniture and other effects of the common household.

Upon the death of either spouse or upon divorce, the joint estate is, in the ordinary course, divided equally.

Marriage Out of Community of Property

Parties choosing this option are required to enter into a contract called an Ante nuptial Contract before the wedding. This contract must be signed by both parties in the presence of a Notary before the wedding ceremony.

The contract will contain terms to the effect that Community of Property and of Profit and Loss are excluded, and the parties continue to have separate estates even after their marriage. They do not benefit from each other's gains, and, in the ordinary course, are not liable for each other's debts.

Upon the death of either spouse or upon divorce, the parties retain their respective estates.

Parties who have or might, in the future, have their own business or have considerable separate estates or have children from a previous marriage may choose to get married Out of Community of Property.

The Accrual System

Parties marrying Out of Community of Property may also choose, when concluding the Ante nuptial Contract, to either include or exclude the Accrual System. If it is not specifically excluded in the contract, the Accrual System automatically applies to the marriage.

In terms of the Accrual System, the parties retain their separate estates and must stipulate the net value of their estates in the contract.

Upon dissolution of the marriage, the increase (accrual) of each separate estate is added together and then divided between the spouses on the basis agreed upon in the contract (normally 50/50). The parties can also exclude assets from the operation of the Accrual by stipulating them in the Ante nuptial Contract.

This system is ideal for persons who wish to have the best of both worlds i.e. protection from the liabilities of the other spouse, yet sharing in the benefits brought about by the combined efforts in the marriage.

Before deciding on what matrimonial regime should apply to the marriage, ask to speak to one of our Notaries in order that all the implications and options may be explained to you.