Love or liability? Why a marriage contract may be the best Valentine's proposal gift

Love is a contract sport. Because when you put a ring on it, as the tune goes, the soft-focus of love must also be deconstructed to match real-world demands of a shared future. Rarely, when anyone anyone pops the question, the fine print that marriage is also a legal and financial arrangement is anywhere near the champagne.

Legal broker Shaun Muskat of Karen Schafer Attorneys said many couples entered marriage without fully appreciating that they were also selecting a matrimonial property regime, often by default. That default, he warned, could be more far-reaching than many realised.

Under South African law, couples who sign no agreement before marrying are automatically married in community of property. That creates a single joint estate, combining assets and liabilities. “This means that the parties’ estate is joined in unison and all the assets as well as the liabilities become the responsibility of both partners,” Muskat said.

Love’s fine print

It is often the liability side that becomes contentious later, he added. Debt incurred by one spouse can attach to the joint estate, even if the other spouse was unaware of it. “The incurring of liabilities whether a spouse is in the known or unknown. A creditor will sue both parties as they have a joint estate,” he said.

Muskat said this was why he regarded an antenuptial contract as a practical tool rather than a sign of mistrust. It’s a love letter, with a different take. “An antenuptial contract is a true test of a partner’s love for one another,” he said. “If partners are honest with each other they will not have any issues signing an antenuptial contract with the inclusion of the accrual system.”

An antenuptial contract (ANC) with accrual allows each spouse to declare their starting assets. When the marriage ends, the growth in each estate is calculated and the spouse whose estate showed greater growth shares half of that increase with the other. “It is often used by newly married persons that do not have a large commencement value or a major asset base,” Muskat said.

It’s about assets

An ANC without accrual keeps estates entirely separate for the duration of the marriage and after it ends. This option is often selected by those entering marriage with substantial assets. Muskat noted that it typically favoured the financially stronger partner. He added that many couples still signed legal documents without fully understanding their implications. ”People generally do not understand antenuptial contracts and its purpose,” he said, adding that proper legal explanation was essential before signing.

The same legal realities apply to couples who live together without marrying. South African law does not recognise a common-law spouse by default, meaning there is no automatic legal protection for cohabiting partners. A cohabitation agreement, Muskat said, was the only reliable way to define financial rights and responsibilities in such relationships.