Women's Legal Guide to Marriage
"It's like you are planning for a disaster. You are saying this might not work," explains Zonke*, 31. The problem Zonke now faces is that since her marriage broke down a few months ago she has had to negotiate with her husband that he not claim half of her estate, which is made up of a house worth more than R1 million, a booming business, and several policies.
"We never spoke about antenuptial contracts or stuff like that before we got married but I was aware of it. When we got married we were happy, but three months into the marriage I found out he was cheating. So after seven months we broke up, but we are still friends," says Zonke.
"I'm making sure we are still friends because I don't want things to turn nasty and for him to get greedy and want half of what is mine. I'm willing to help him financially where I can because he doesn't make a lot of money. I earn more than he does and I stand to lose a lot more than he does if we divide the assets," she explains.
Despite her current position, Zonke believes that she made the right decision. "You can't predict the future. Marriage is about trust and hoping for the best. If you know you are marrying for the right reasons, you'll deal with whatever happens in the future when it happens."
Divorce attorney Jacqueline Ellis of Jacqueline Ellis Attorneys disagrees with Zonke's assessment of an antenuptial contract(ANC) and says, "The legal books say love is blind and marriage is an eye-opener."
Society teaches women that good girls don't talk about money and that is rubbish. You need to know when you get married – and the confetti is out of your hair and you are back to real life – if you and your partner are going to have a joint account or if you're going to have separate accounts. And if you are going to buy property together whose name do you want to register it in?
So when you talk about an ANC you are not talking about divorce but you are dealing with financial reality," explains Ellis.
A marriage doesn't only dissolve when you divorce, it also dissolves when one spouse dies. If you are married and you die, the assets and liabilities of your estate are determined by your matrimonial regime," she says.
Ellis says that people who are wary of discussing money should remember that these discussions affect a marriage from the moment you decide to tie the knot.
"Not speaking about assets and how you want to share them or not share them is ignorant," she says. "If you are too scared to talk to your partner about finances, or you don't know what he earns, it is a problem. I always say to people you don't need to be scared of an ANC.
"If you are, you need to look in the mirror and wonder what it is you are afraid of. I've found that couples who fight about assets when we are drawing up an ANC are often arguing about deeper issues."
Discussing your assets before you tie the knot is important, says Ellis, because whatever arises from your discussions determines what matrimonial regime you are going to elect to govern your marriage.
In South Africa there are three legally recognised marriage regimes and each one governs how assets in a marriage should be handled. Ninety percent of Ellis' female clientèle do not know which matrimonial regime governs their marriage and therefore they don't understand the legal and financial consequences.
"It never ceases to amaze me how much people are willing to spend on their weddings but they are reluctant to pay for an hour-long consultation with a lawyer to get some legal advice before getting married," says Ceri von Ludwig, a family lawyer specialising in divorce for Bowman Gilfillan Attorneys.
How clued up are you about marriage regimes? Were you left out in the cold? Tell us about it in the comment box below.