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MARRIAGE AND LIVING TOGETHER ARRANGEMENTS AND CONTRACTS

When a young man falls in love with a young woman and they decide to become married, it is most important that prior to the marriage they apply their minds to the legal consequences of their decision to marry. There are several regimes recognized by our Law which will govern your marriage and it is important for you to select the regime which both you and your spouse to be finds most suitable to you. Ensure furthermore that once you have made your choice, you comply with the required formalities in order to give legal effect to the regime under which you decide to marry.

It is important to note that the decision of which regime under which you will marry is taken prior to the marriage itself. If this decision is not made, you will automatically be married under the common law of the Republic which is in community of property. If you have not chosen the correct regime prior to your marriage it is only with the permission of a Judge of the High Court on good cause shown that you may change your marital regime.

Over the past twenty years or more there has developed an ever increasing number of men and women who have decided not to become married but rather to live together, under the belief that to avoid the trauma of a divorce it is much easier and less traumatic for the couple to part company if the association does not work out. In this connection, very few of these couples take legal advice prior to commencing their association and in the process do not govern what will happen when they part company. Very often if the association lasts for several years and if property is acquired together in the absence of an agreement determining what will happen when the association comes to an end can lead to the parting of ways become as if not more traumatic then a conventional divorce.

Similarly, prior to and upon our Country having been liberated and having become a democracy, people in same sex romantic relationships have also decided to live together and have done so and continue to do so in the absence of concluding an agreement governing what will transpire should they decide to terminate the relationship. This too can and may lead to and result in trauma.

Towards the end of 2005, our Constitutional Court (the highest Court of our Land) in a publicized judgment ruled that our Current Laws outlawing same sex marriages is unconstitutional and predicated that our Legislators must enact amendments to all existing legislation within one year to have the effect that it will be possible for couples for men to marry men and women to marry women if they desire. It emerged that this decision was handed down almost contemporaneously with it now being possible for same sex marriages to be performed in Britain. Thus it will take at least one year until the legislation following the decision is put in place before same sex marriages can be legally performed. It is likely that during this period, and in contemplation of being able to legally marry, many more people of the same ex engaged in a romantic relationship will decide to live together.

Just as it is possible for those contemplating marriage to decide on their matrimonial regime to enter into a legally binding agreement determining their matrimonial regime which also governs what will transpire in the event of the marriage ending in divorce, so it is equally possible for those engaged in a romantic relationship to conclude a legally binding contract governing their relationship and governing the division of assets and the like in the event of the relationship coming to an end.

The best way of ensuring that you understand the regimes under which you can marry, to assist you in making the choice of the most appropriate regime for you, and that, having made the choice, you have complied with that which is required in order to validate the regime you have selected is to consult your Attorney prior to your wedding date. He or she will explain the various regimes to you, highlight the advantages and disadvantages of the various regimes, assist you in making the choice of regime which is most appropriate for your situation, and ensure that you comply with the required formalities in order to give legal effect to the regime under which you decide to marry.

Similarly if you are engaged in a romantic relationship with another and you wish to live together, before actually embarking on your decision, consult an Attorney and debate and determine the nature of your relationship and what will transpire in the event of the relationship coming to an end, and have your Attorney prepare an agreement for you to sign. By acting prudently in this fashion you are in all of the instances above avoiding unnecessary trauma and heart break.

In conclusion, therefore, take legal advice, and consult an Attorney, it is the prudent course to follow.

Johannesburg

VICKY BOVE AND LESLIE KOBRIN

2 nd January 2006

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