Marriage Contracts In South Africa

Marriage is a beautiful thing where two people come together, with the plan of spending the rest of their lives together.

However, marriage is also a legal contract between people with marriage contracts playing an important part of deciding who gets what if a divorce were ever to transpire.

On top of this, these contracts also determine where the property will go, in case of death, meaning that deceased estate planning is also a very important factor when getting married.

Marriage often has a lot of good but the contractual obligations can become very stressful. These marriage contracts can often be very difficult to understand and although they are necessary, it can feel like you don’t know anything.

Finding an attorney who will guide you through the process, such as Dreyer Engelbrecht Attorneys, will help you in not breaking the breach of contract law, which will see you coming out with next to nothing if you do get divorced.

There are two marriage contracts which determine how you will divide your assets and properties.

Advantages And Disadvantages Of Community Of Property

A community of property is a marriage contract South Africa which will mean that you and your partner will have to merge everything which you and your significant other own, before and during the marriage.

This may seem as if you are ensuring that you and your partner are showing trust, however, it can become a problem when the other person has the authority to tell you what you can buy or sell, including property.

The benefit of this form of the marriage contract is that if you get divorced, you will get half of all of the shared assets.

Another plus is that you will be able to run your assets as a unit, instead of doing so separately.

With everything there are negatives, marrying under Community of Property means that when wanting to enter into a credit agreement, you will have to get the written authorisation from your partner to do so.

Another major factor is that you will become responsible for your partner’s debts and therefore if they cannot pay, you will have to.

Advantages And Disadvantages Of Ante-nuptial, Marriage Out Of Community Of Property
An Ante-nuptial marriage contract provides two choices for you and your partner, either marry with or without the accrual system.

The accrual system is a method which affects the way finances are managed between a couple. If you marry with an accrual, then your marriage contract will state that the partner who is most financially at risk will be covered.

Marrying without accrual means that each individual will have to settle their own assets individually.

Marriage Out Of Community Of Property With Accrual

The benefit of this system is that if you decide, or it is more beneficial, to stay at home and be a stay at home parent, then you will be covered.

It is a benefit in choosing this marriage contract, with other advantages being that you are not responsible for your partner’s debts, you can freely control and develop your own finances and anything you owned before the marriage will be covered and will not belong in any way to your partner.

However, this form of contract does pose some disadvantages whereby if you are the more financially stable individual, then you will have to share all assets which you have obtained during the period of the marriage.

Another drawback is that if your partner is much more monetarily stable than you, the marriage contract states that you are dependent on them.

Marriage Out Of Community Of Property Without Accrual

This marriage contract ensures you that any and all of the assets which you have acquired before and after the marriage is yours and yours alone. You and your partner keep whatever it is you made individually.

Where you keep and control your assets on your own, as well as not needing permission from your partner into entering any business deals and no assets can be claimed by your significant other after the marriage, there is a problem.

The accrual system in this marriage contract will not help you if you decide to stop working, meaning that all the pressure will go onto your partner, of course, if a divorce ensues, the system will still not provide for you.

The Importance Of Understanding Marriage Contracts

Marriage contracts are legally binding contracts and can seriously impact the way you live, as well as the way in which you are able to move on if a divorce occurs.

Like any contract, a breach of contract in the marriage will give your significant other more power in the divorce settlement.

Breach of contract law has been put in place to protect all parties who have signed a contract in good faith.

If prior to death there has been deceased estate planning been put into place, which will decide which properties go to who, and a spouse decides to take a property not owed to them, they are breaching the contract that was set up.

Failing to fulfil all of the contractual obligations of a contract will mean that you will be in breach of contract, which will mean that you are liable to any and all of the damages and financial losses that occurred because of the negligence.

Signing a marriage contract which has been set up in the form of a community of property and not living up to the terms of the contract for your partner, will mean that you are in a place where if your partner were to sue, there is a high possibility you could lose.

Of course, breach of contract law is not solely based on marriages as any contract drawn up can be broken.

There are a few forms of ways in which a breach of contract can occur.

Defective Performance

This is a smaller infringement compared to the rest of the types, whereby the contract is being performed but only to a certain extent, not to the full degree with which it should be performed.

This breach of contract can be altered as if a person states that, if given a chance, they will perform to the best of their ability and under the guidelines of the contract, then there will not need to be a big legal battle.

Delayed Performance

This breach of contract comes in the form where a party is not completing their tasks within the timeframe which was agreed upon in the contract.

This can be a project which needed to be completed by a certain date, so the release could be done on time, yet the party is not complying with the contractual timeframe obligation.

Complete Non-Performance

This is a very serious breach of contract as after a contract is signed, if a party does not do any of the tasks and responsibilities which fall under the contract, the party could be liable for monetary damages as they have not only wasted time but has stopped the business from being able to function.

As stated, the type of legal action that can come from a breach of contract all depends on the form which it falls under.

Claims For Breach Of Contract

Breach of contract law can be tricky in terms of understanding exactly what it is you need do in order to recoup what you feel is fair.

When laying out a claim you need to be aware that you will have to provide information which substantiates why the party was in breach of contract.

A solution to the claim can only be found if all of the proper procedures are followed.

Making one mistake can mean that even though you are just in stating that the part was in breach of contract, the proper steps were not taken and therefore the claim is unmerited.

If things are done right and the case cannot be defended in any way, the breach of contract claim can be cut and dry and the claim will be approved.

A Legally Binding Contract

In order for a contract to be legally binding, as well as for it to be able to be protected by the breach of contract law, it has to be recognised as being under the guidelines and rules of our country’s laws.

Ensuring that a contract is legal will save you from potential losses in the future as having a contract which is not up to par will mean that there is no cause for a claim.

5 Elements Of a Breach of Contract

  • A legally binding contract:
  • non-compliance with one of the legally binding terms of that contract:
  • The express term or implied term will be one of:
    • a condition
    • a warranty, or
    • innominate term

Damage does not have to be done in order for there to be a breach of contract. Simply put, the outcome may simply be for there to be a stop to any further offences or by ensuring that the party completes their work under the guidelines of the contract.

Advantages Of Deceased Estate Planning

Protecting Your Beneficiaries

The one reason you should look into deceased estate planning is to ensure that your family members and loved ones will still be able to continue their lives if and when you pass away.

Having a portfolio and contract of all of your assets which will be divided amongst your beneficiaries will help your family during this difficult process.

Where death and funeral expenses can take a lot of your time and money, deceased estate planning is done to take the stress of assets off of your family’s shoulders.

If this is not done, then the courts will decide who receives what assets.

Safety Of Your Children

Deceased estate planning helps with making sure that your children are protected and can still live their lives even after your untimely death.

The will puts everything into place in order to help your family know who will get what and when, as some wills stipulate that a child will receive certain things at certain points in their life.

Focusing on your deceased estate planning is something which will benefit your loved ones as there is less confusion when having to go through processes of finding out which assets belong to who.

Courts will have to again step in as they will be unfortunately determining who is best fit to raise your child.

Tax Breaks

Drawing up a deceased estate plan will not only help your beneficiaries in terms of protecting your children and the assets, but it will also help to ensure that your loved ones are not in a position where they are being taxed severely.

Deceased estate planning is by far one of the most important things any married person with children can do. This is a responsible approach to life so that even in death, you are protecting the lives of your family.

Eliminating Family Drama

Family matters can be ugly, leading to a lot of infighting about who deserves what, what they are taking and who should receive money.

Although this is the case, with there being stories of really bad cases, deceased estate planning can eliminate this drama.

If there are items that have been stated are going to specific people, and it is contractually stated, then there is very little any begrudging family member can do about it.

After all of this, it may seem as if marriage contracts, breach of contract law and deceased estate planning are all these super complicated responsibilities.

They can be complicated but by using Dreyer Engelbrecht Attorneys they will be able to best serve you for the benefit of you, and your family’s, future.

Contact Dreyer Engelbrecht Attorneys For More Information

Dreyer Engelbrecht Attorneys provide a whole host of services, including marriage contracts and deceased estate planning. If you’re looking for the best quality law service, then look no further. Contact Dreyer Engelbrecht Attorneys for more information.