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Protection to Surviving Spouses

'Why do we need a marriage contract if we don't have any money?' Notaries often hear this question, almost as a joke. Engaged couples quickly come to understand the economic realities of life together. They are going to have to furnish and equip a home, maintain a bank account for household expenses, and they will have to start saving. The household is often described as a 'conjugal enterprise.'

Is it not best to start out by making arrangements about how it will work? The essential question at the time of the marriage – on the material level – is the protection of the future of both partners during the marriage as well as at death or divorce.

How the finances in a marriage will work, depends on a few factors. How will income be generated - salaried, self-employed, running a business? Will both work? Is it going to be a good idea to keep certain interests separate and to preserve each party’s independence, bearing in mind the risks associated with the ups and downs of a business? And then one day – a very long time ahead, one hopes – the marriage will come to an end, either by death or divorce. It is well known that South African law does not offer adequate protection to the surviving spouse. It is advisable to think at this stage about ways of protecting the survivor; gifts can be made at any stage, but some forms of protection can only be achieved in a marriage contract.

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