There are numerous legal agreements South African couples can enter into instead of the “traditional” marriage.
Which legal agreement a couple wants to enter depends on what suits their relationship.
Some may want to get married, but with adjustments to suit their needs. Others may want to live together without getting the government involved.
Michael Visser, a legal advisor at Legal&Tax, explored different legal agreements for couples.
Visser said that antenuptial contracts – also known as prenups – set out how to divide property and assets in a marriage and, if applicable, a divorce.
According to the Supreme Court of Appeal (SCA), these agreements create a property system different from the normal transfer of estates during and after marriage. Community of property is generally the normal transfer, where two estates join to create one.
Prenups give two alternative options: ‘out of community of property with accrual’ and ‘out of community of property without accrual.’
Out of community of property means that a partner’s assets that they had before the marriage remain theirs. Either party can enter this agreement without the other partner’s consent.
Accrual refers to the assets that are acquired during the marriage. ‘With accrual’ means that new assets or properties acquired during the marriage will be split evenly.
‘Without accrual’ refers to the scenario where assets or properties acquired during the marriage remain the property of whoever acquired them.
Spouses can also specify assets that will not form part of the accrual before the conclusion of the marriage.
Cohabitation Agreement (CA)
Not every couple wants to get married, and some may wish to enter a Cohabitation Agreement.
This will allow partners to live together but without the bonds of marriage.
Visser noted that common law marriages do not exist in South Africa, no matter how long the parties have been in a relationship. Although new legislation has given protection to parties in a relationship such as this, it is still not perfect.
Cohabitation agreements are the closest thing to common-law marriages in South Africa.
The agreement says who is responsible for what in the present and future. It also ensures that there is a mutual understanding of the respective rights and obligations to one another and the other party’s property and assets.
The agreements are legally binding but do not offer the same protection as a marriage.
Power of Attorney (POA)
“Broadly, a POA gives the agent (nominated person) the authority to act on behalf of the principal (person doing the nominating) in certain circumstances such as legal or financial matters,” Visser said.
There are two kinds of POAs, Specific and General.
A Specific POA gives the agent the power to perform a specific act, like signing a legal agreement.
Whereas a General POA allows the agent to act in a general manner, outlined in the document, until the POA is revoked, either party dies, or is pronounced incapable.
A third party must recognise the POA, meaning that the organisations involved may scrutinise or decline the agreement.
The POA is not a contract but an expression of will by the principal. The agent is trusted to abide by the will of the principal. Hence, POAs end when the principal can no longer act in their own capacity due to illness or sequestration.
Should the principal need to make decisions on their behalf, one can apply for administration or curatorship.
Administration falls under the Mental Health Act and allows for a severely disabled or mentally ill party to have their affairs managed by someone else.
Curatorships are far more complicated than POAs and require a multi-stage application to the High Court with supporting medical evidence. They usually only end when the person under curatorship dies.
Your Last Will and Testament (LWT) and Advanced Medical Directive (AMD)
A LWT sets out who will benefit from a party’s estate after they die. It should be given to a lawyer, with a copy given to a partner.
An advanced directive lets people know what must happen shortly before a party’s demise.
A party may technically be alive but no longer have the capacity to make decisions for themselves. An advanced directive thus lets an important person know what the party wants in such a situation – some people may wish to become organ donors.
South Africa does not recognise living wills, but it does recognise the right to refuse treatment.
An AMD allows a party to name a healthcare proxy or assign a Medical Power of Attorney to the person that they trust to act in their best interest.
Individuals have the right to chose not to be kept alive if there is no reasonable chance of recovery, but it is usually impossible to ask someone in that condition what they want.
The Advanced Directive ensures confusion regarding being kept on life support does not happen.