South Africa recognises three different marriage regimes: civil marriages, civil unions, and customary marriages. In this episode of the “On The Money” podcast series, John Manyike, Head of Financial Education at Old Mutual, sits down with attorney Bianza Liesering and “Anonymous” who shares her personal experience of being in a customary marriage and the impact it had on her financially. We hear from Bianza on how a customary marriage is recognised legally in South Africa and she explains:
South Africa recognises three different marriage regimes: civil marriages, civil unions, and customary marriages. In this episode of the “On The Money” podcast series, John Manyike, Head of Financial Education at Old Mutual, sits down with attorney Bianza Liesering and “Anonymous” who shares her personal experience of being in a customary marriage and the impact it had on her financially. We hear from Bianza on how a customary marriage is recognised legally in South Africa and she explains:
John Manyike 00:04
Good day to you ladies.
Anonymous 00:06
Good day.
John Manyike 00:07
Okay, so today we are joined by “Anonymous”. And Anonymous has got an interesting story to share with us. And we have invited our attorney Bianza. So what we want to talk about today is a very sensitive topic, something that affects a lot of women out there when it comes to customary marriage. There are a lot of debates about at what point does lobola become a legal marriage, so to speak, even though it may be a process towards a customary marriage. At what point does a lady become married according to customary law when there's a lobola involved? We also want to understand that and I'm glad that we've got Bianza here to tell us from a legal point of view, what is the legal status of a couple that has been married through lobola, and then they separate and they never registered the marriage with Home Affairs? We're gonna be talking about some of those things, and including issues around people who are cohabiting you know, “vat en sit”. And we're going to talk to the “vat en sit” issue as well. But let me go to Anonymous first, can you tell us why you chose to become Anonymous?
Anonymous 01:24
Okay, thank you so much for this opportunity. The main reason why I chose to become Anonymous is, because I understand that the issue of finance and obviously marriage, it's something that is a bit secret and it's more of a personal issue. And in most cases, when you want to talk about your finances, either to your family or your friends, you want to have a sort of an end to say, I cannot tell them this much because otherwise, you know, we all know about Black Tax and we all are scared of that.
John Manyike 02:02
Yeah, yeah. But I guess it's also to protect your loved ones, your child as well, you have a child.
Anonymous 02:08
Yes, yes.
John Manyike 02:09
So hence, you decided to keep your identity private. So maybe let's go to the beginning, how you met your significant other half at the time, now your ex. How did you meet?
Anonymous 02:20
Okay, I met my ex-husband, it sounds very funny that I call him husband because I was clueless. I was clueless. But yeah, I met him, I think about five, six years ago. And then three months down the line, we were already like more than just friends. And then a year or six months later, we had a child together. And then I think over a period of eight months, we were already talking marriage, but now, I was clueless because we were just dating and you know, we don't talk about a budget. So what I felt at that point that the reason why we got married, was the fact that when his family came to say, you know, we this is what happened to your daughter. And my family had like responded to say now that your son has done this, what is next? So that is where the whole thing started.
John Manyike 03:27
Before we go there, where did you meet?
Anonymous 03:29
We met by the robots.
John Manyike 03:31
Wow
Anonymous 03:33
And we were working in the same building. But now, I was not aware that he's going to the same building as I was. And we walked together only when we got to the entrance and he was like, “Oh, this is where you work. I also work here”. I made this flow and stuff like that. And for myself, seeing that I'm anonymous, I've always been a private person. So I told him you know what, I don't know how this is gonna work out because we're in the same building. We started talking and we were so much in love. We couldn’t hide it anymore.
John Manyike 04:04
So was it love at first sight?
Anonymous 04:07
It was love at first sight because he had nice brown eyes and long lashes.
John Manyike 04:09
So this traffic lights are really working.
Anonymous 04:11
They are, I thank God it was red.
John Manyike 04:15
Wow.
Anonymous 04:16
We had to stop, sure. But apparently he has been watching me. He told me later on that he's been eyeing you.
John Manyike 04:24
He's been eyeing you.
Anonymous 04:26
So, then we could not keep it a secret anymore because obviously, we want to see each other during the day. And I'm talking we were really, really so much in love. And then up to a point well, I got pregnant. And then yeah, there was a child.
John Manyike 04:46
So the lights changed from a maybe it started it was red then it became the amber now it was green.
Anonymous 04:54
It was green, yeah. And then like I said earlier, the whole issue of working out how we going to go about our finances and stuff like that. And mind you, I'm at that point I’m earning more than him.
John Manyike 05:16
Oh.
Anonymous 05:17
And then, but it wasn't a problem at first until later, during the relationship, then I realized that. I think we've got a problem here. Because the fact that initially we never spoke about it. And I think that is a mistake that we normally do as people.
John Manyike 05:34
So why was it a problem that you as a woman, you earn more than your partner? So you're not married at the time, when you discovered that while the skills have tilted more in your favor. His salary is there, yours is up there?
Anonymous 05:47
Well, I can't see what his issue was because I cannot speak on his behalf. But I thought at that point that like in a relationship, you argue and stuff like that, but every now and then he brings it up and saying well you doing this because you earn more than me, and all of that? And I remember at some point in the relationship, I wanted to start talking about budget. It was a big issue.
John Manyike 06:11
This is before marriage?
Anonymous 06:12
Yeah, before marriage.
John Manyike 06:14
Okay.
Anonymous 06:15
It was a big issue. But you know, we don't always see the red flags. And but then it went on and on, and there were some fluctuations of Okay, now we're happy. No, no, no. Now we're talking about finance. Now you want to mention that I earn more than you been to him, probably I was a very disrespectful person.
John Manyike 06:37
Why do you think some men seem to have a bit of difficulty dating or even marrying a woman who earns more than them?
Anonymous 06:46
Well, I think society has given us this idea that men must provide. I think it stays behind at the back of your mind that I need to work hard to make sure that I provide an obviously meaning. By that it means you have to be able to add more so that you can be able to provide, then it becomes a problem when I for example, something that I used to do, we go out, there's no money. But then I've got some left. And then I want to go out, but he cannot take me out. But when we go out, I give him my card, my pin. And when we get to the restaurant we eat and stuff like that. And then he takes out the card. And I think that gave him a sense of “I'm the man in the house”.
John Manyike 07:37
And I'm in charge.
Anonymous 07:38
So I'm not sure whether I was wrong, or what. But in my mind, I think I was trying to be more accommodating and understanding of it. But like I said, when we have to now, when there's an argument, then that comes up. So that's one thing. I'm not sure that was wrong to be so much of a supportive.
John Manyike 07:52
Yeah, but was it not a plus for him, if he had an issue with you earn more than him that when you're in a restaurant, you actually literally give him the card. How did that make him feel?
Anonymous 08:05
I believe it was a plus for him. And I think it made him happy because he was able to, if let's say, if it was about him being the giver, then I think it was a plus for him. And it actually made him happy. But it was a problem when the arguments were started.
John Manyike 08:22
I'm just curious, what if you had given him the card to swipe and then he decides to order a wine worth 20,000? What were you going to do?
Anonymous 08:32
We would talk about it. Because I've always been about budget, budget, budget, but we've never done it throughout the marriage. So I will tell him, okay, maybe we should spend this much for tonight or for whenever. And then if maybe there's a bit of you know, then it must be at least 100 or 200. so we with not that I was just giving I am not blessed. But I was very, very, very careful to say no, let's spend this much.
John Manyike 09:02
So money was a sensitive topic, even while you're dating before you got married. Okay, so now you got to a stage where you are studying to discuss marriage and so on. And how did you go about planning that and you know, the route you will go?
Anonymous 09:17
We still need to talk about budget. The main topic was about how much does your family want for lobola.
John Manyike 09:26
So the lobola money came from who I'm just asking?
Anonymous 09:29
It came from him.
John Manyike 09:32
Okay. Did he borrow money or was able to put money together for lobola?
Anonymous 09:36
I think he had money on the side that I did not know about.
John Manyike 09:40
Oh.
Anonymous 09:41
Yeah, so that's the money that he used.
John Manyike 09:46
Okay. So, the big day came for lobola. Tell us more about that.
Anonymous 09:50
Okay. It was a really nice day. And I didn't know how much was the, what do they call it again?
John Manyike 09:57
[Foreign Language].
Anonymous 09:58
I didn't know how much was paid. But it was like any normal day. And what had happened was it was supposed to be like a small family affair. Next thing I see a tent and, but I was not dressed for the occasion. It was just that…
John Manyike 10:15
You just blew up.
Anonymous 10:16
Yeah, but my understanding was like, it's just going to be like very small.
John Manyike 10:20
Yeah. So when neighbors, did neighbors come there?
Anonymous 10:21
So before that the planning, we bought food from my side, we bought food, there was no cow or anything slaughtered there. We went to the butchery to get meat to cater for.
John Manyike 10:34
Okay. And then on that day was any song and dance, song and dance, you know?
Anonymous 10:38
No, it was only the delegates from his side and I was not allowed to talk and then I was presented to everyone outside and that's it. I went back to the house.
John Manyike 10:53
Do you know if there was any exchange of gifts? You know whiskies and whatever it is, any during on that day?
Anonymous 10:59
What I know, there was a jacket for my dad.
John Manyike 11:04
Was lobola paid in full?
Anonymous 11:05
It was paid in full.
John Manyike 11:07
Okay.
Anonymous 11:09
But I think the exchange of the gifts happened before the day.
John Manyike 11:14
And then what happened? Did you move in together? What happened thereafter?
Anonymous 11:17
We were staying together before the lobola. And after the lobola and then we continued to stay together. And then we didn't have a child with us, the child was with the grandparents.
John Manyike 11:29
So a few years ago, you called me. Are you comfortable to share what was the conversation all about?
Anonymous 11:56
Okay, when I called you, it was mostly about the child, the child was staying with the paternal grandparents. That happened after the lobola. So we decided okay, let's take this child to the grandparents because obviously, he must be able to learn both languages and know both parents, and then the child was over there for about two and a half years. But during that two and a half years, we would go and visit whenever we had a chance to, then the main problem that made me call you was that I could see now that relationship was getting a bit hectic. So they couldn't let me get my child back. I hate to use these my, our child back, but in this case, I'll use that.
John Manyike 12:30
Were you're still living together that time?
Anonymous 12:32
At that time we’re still living together. So but now the relationship is no longer good. So I wanted to get the child aside because obviously, if we are going to separate or divorce, and I must tell you that at that point, I didn't think there's going to be a divorce. But we'll talk about that one later. So I'm thinking that now, it seems like now our future is going down. And there's no future here rather. So I want to get the child decide to stay with me. And there was just a lot of procedures there to see. You must come with your parents. And I'm like, but I am a parent. So there was, then I called you to say, I'm facing this issue. I don't know how to go about it, and I can actually see that we are no longer gonna be together. And then how do you go about that one.
John Manyike 13:23
Did you finally separate?
Anonymous 13:25
Yes.
John Manyike 13:26
Okay. Then after separation, you had intentions to move on with life, you wanted to do other things. Tell us what were your intentions after you separated?
Anonymous 13:35
After or rather, let me just talk about during the whole process. I did not have an idea that there is such thing as, or rather lobola is, it's like civil marriage. One day, I'm at work and the receptionist called me to say we've got a delivery for you. There's some documents.
John Manyike 14:01
Okay. Before the delivery, there was a time you when you're separated and you wanted to buy a property?
Anonymous 14:11
I wanted to buy property. And when I approached the bank, the bank told me that they were asking, are you married? I said, “No, I'm not married”. And then but there's a lobola later. And then they came back to me and say, they gave me, I think it was an act or regulation or something to say in terms of this act you're over the age of 18. There was exchange of gifts. And so you are married in community of property. That was a shock to me. Because I was clueless. So and they told me, Okay, bring in his pay slip so that we can be able to see how much the both of you can afford because for the house that I was looking for, I could not afford on my own. So the bank asked me is there anybody that you can sort of buy this house with, and I told them, that when they gave me that regulation to say, darling, you're married in community of property.
John Manyike 15:13
So you discovered for the first time at the bank that you are actually married, not only married, but married in community of property, even though you never registered your marriage with Home Affairs?
Anonymous 15:20
Yes, we never went to register. And there were so many attempts to go there. And he was talking about, he used to talk about out of community of property with accrual all those words, I was so clueless about them. So only when they told me about in community of property. And that's when I decided to like look for more information, but it was too late. I think it was too late. And seeing that the relationship was not going well. I was like, “Okay, this is it”.
John Manyike 15:56
So when you discovered that because of your customary marriage, the legal document they showed you was stating to you that you're actually married in community of property. Did you go ahead to buy the property?
Anonymous 16:08
No, I actually put that on to hold because I felt like, while I was still studying this whole thing, I felt like if I continue, then we're going to end up fighting for something that I could have protected myself on. So I stopped. And then we, and by the way, we were renting out the flat that we were staying in. I was the one paying the rent and he was yeah, he was doing the other things like buying groceries and all those things.
John Manyike 16:44
You decided not to go out to buy the property. And then what happens thereafter? You said you were told at work that someone was come to pay you a visit?
Anonymous 16:55
Yes. And I go to the reception and they gave me this document, I think it was a very thick document. And I just saw a big stamp on it
Anonymous 17:08
And it scared me and the first thing I saw was High Court.
John Manyike 17:18
So everybody could see your [inaudible 00:20:05].
Anonymous 17:19
I am a very private person. So I took the document went to the office. And now I'm sitting with this document. I looked at it and I read it. And I saw that the main reason for the divorce is because I moved out. You know, that was a lie. But yeah, I moved out and I was like, Okay, I had a legal thing with another service provider. Then I immediately called them to say, Okay, I've got this thing in front of me. But I'm not gonna, I don't want to fight. I don't want to interject or whatever. Can you assist me? And during that time I had, I think I had 10 days to respond.
John Manyike 17:58
So these were divorce summons.
Anonymous 18:01
So I had about 10 days to respond. And here I am talking to the other service provider to help me. Then I realized they're not helping because they thought I was contesting. So I told them, okay, you can stop the process. Then I think on day three, I took the document to the High Court, to the document to the High Court, and then they told me, okay, this is what's going to happen. You either going to look… the first thing they asked me was, do you have money? And luckily, it was during, I think around August, so I was able to say ja because I knew that I was going to get my bonus. So I said, yeah, well, let's see, okay, they told me, okay, you either going to get a estate lawyer or attorney, or you get your own, and then the clerk that I was talking to said to me, there's a few that I know, I can recommend one for you and then we can take it from there.
John Manyike 19:05
What was your husband claiming from you in that divorce summons?
Anonymous 19:11
In the divorce summons, he wanted 50% of my pension which he says I am entitled to it.
John Manyike 19:21
And how long have you been?
Anonymous 19:23
It was three years. Yeah, three years.
John Manyike 19:25
Right.
Anonymous 19:27
So I went to the court, and then that guy took me to another attorney. And then I went there and explained my story. And that attorney said to me, I want to open a file. Okay, all right, we can open a file. And he gave me another document, which is got some rates to say if this is going on, this is how much you're going to pay and easy. And then he said to me, for me to open a file for you. I'm gonna need 7.5.
John Manyike 19:58
7.5 to open a file to open a file?
Anonymous 20:00
To open a file and start the process.
John Manyike 20:02
So just by greeting the lawyer to open a file 7500.
Anonymous 20:06
Yeah, this was the thing I was like, okay, I think I do have that. Then he opened the file, and he told me, you know what, I don't see a problem here. I don't see you guys fighting for any household estate. And so it's going to be a very short thing for me to do. So I don't even want to see you in court.
John Manyike 20:30
What was the final conclusion as far as the divorce is concerned?
Anonymous 20:34
The 50% of my pension. He said, Okay, I want that. And my attorney said, “Okay, if he wants your 50%, you can get his 50% then”, because if you're going to keep it, you probably have other financial issues. Maybe you want to use that to like, for instance, buy a house or whatever. So I said, okay, cool. I also want his 50%. But I knew that it wasn't going to match mine.
John Manyike 21:01
So his 50% and 50% was less than your 50%.
Anonymous 21:04
Yeah.
John Manyike 21:05
Okay.
Anonymous 21:06
But I knew that but I thought, okay, if whatever money comes, I'm going to use it for whatever and I'm going to try as hard as I possibly can to make use of it properly. Then there was that and the child or obviously, we had gone to the familiar advocate, where he said, Okay, the child will stay with the mother. And that documents were of the family advocate was also part of the settlement. So it was only that 50% and that was it.
John Manyike 21:36
So he got your 50%, you got his 50% and then saw the matter was concluded and that's how eventually you got divorced.
Anonymous 21:44
Yeah.
John Manyike 21:45
All right. Let me bring in Bianza into the discussion. So Bianza here's the situation. I think it's important for people to understand what is the legal status of a customary marriage in terms of assets, you know, when we're talking lobola?
Bianza Liesering 22:01
So I know with customary marriages, you automatically married in community of property unless you approach a notary to draw up an antenuptial contract.
John Manyike 22:13
Tell us more about this antenuptial contract. I mean, what is the difference between customary marriages, the lobola stuff, when you conclude that marriage, automatically you are deemed to be married in community of property?
Bianza Liesering 22:24
When you get married, you can decide, even if it's in a civil marriage, or a customary marriage, you can enter into an antenuptial contract in both of them in all marriages. So an antenuptial contract is basically just a contract that regulates your assets and liabilities in your marriage. And before you got married, and during the marriage, what you guys build up together. So that's basically the purpose of an antenuptial contract.
John Manyike 22:52
So ideally, this antenuptial contract, when should it happen? Should it happen before or after?
Bianza Liesering 22:57
Ideally before because if you do after the marriage, it's very expensive, because then you need to approach the High Court, you also need to advertise it in the newspapers for any creditors that you guys owe together to come forth and say, “No, they objecting to you guys getting married.”
John Manyike 23:15
Why does it become more expensive and complicated when you sign an antenuptial contract after the fact? In other words, after paying lobola and concluding your customary marriage. Does it mean that you are now changing a marriage regime from in community and possibly into something else? Is that the reason?
Bianza Liesering 23:33
Yeah, you are changing your marriage regime. And because you guys have already entered or your estate is one. So now you want to separate your estate. And as one you guys already owe a lot of people probably like your mortgages and all of that. So obviously, they have to have a say in this as well if they are fine, because they need to know who's going to be the responsible person for their money.
John Manyike 23:58
So there might be a couple of out there watching this or listening to this podcast, who are saying, well, my partner approached me and said, “We must sign an antenuptial contract yet we have concluded a customer marriage, meaning that we're married in community of property. Now this person is insisting that we must sign an antenuptial contract, do I have a say? Do I have a choice to say no, because take effectively, we actually configure the marriage. And the customer law, which is in community of property,
Bianza Liesering 24:28
You do have a say, but it's always a good idea to have an antenuptial contract because it regulates like, you see, she would have saved her pension if she knew about it beforehand.
John Manyike 24:41
Yeah, but then in this case, we concluded the customary marriage. And then the person comes to know, actually, I want us to sign an antenuptial contract, and it should be out of community of property. And yet, you'd have already concluded the customary marriage, which we've established now that it amounts to in community of property. So the question is, do I have a say, do I have a right to object to changing that marriage? Because then it means there's a change in regime, meaning it has an impact on the joint estate.
Bianza Liesering 25:10
Yes, you do ever say. So you can object, but yeah, I think that will cause like, a lot of fights in your marriage obviously. But that's a conversation between you and your partner.
John Manyike 25:23
Now, let's zoom into what you said earlier about the only legal document that related to the customary marriage was the lobola letter. So a lot of people might believe that, you know, this lobola letter doesn't mean anything because we didn't sign anyway, what is the legal status of that?
Bianza Liesering 25:45
With customary marriages I know that a lot of traditions three or more different requirements. So the courts obviously look at what requirements each tradition has, and the fact that she was 18. Like she said they will, on the letter, it stated that the court basically needs three or more requirements to be met in order for this marriage to be valid. So you don't need to go and register it although the Act does require you to be registered, but because a lot of people don't know it, the court takes that into consideration.
John Manyike 26:20
So if the lobola and the customary marriage is not registered with Home Affairs, does it nullify the marriage?
Bianza Liesering 26:28
No.
John Manyike 26:29
So the marriage is still legal, like in their case, her partner or her ex-husband was able to divorce her just purely on the basis of the lobola letter, but then there are people who dispute the customary marriage and say, “Well, yes, there's a lobola letter, but we had not followed other customary process”. How important is that and how much weight does that carry? You know, away in court if somebody says, yeah, I paid a lobola, whether partially or in full, but we had not followed other processes in terms of celebration or certain rituals. So what is the legal status of that situation?
Bianza Liesering 27:09
The court look at your intention in that present moment when you guys were entering into this contract basically. So both of you guys had an intention to enter into this contract at the time.
John Manyike 27:23
So in other words, a person pays lobola. And then in her case, they then moved in together, and they continue to live as husband and wife and sharing financial responsibilities. So if I understand you correctly, that on its own is all made demonstrate that there was an intention to be married under customary law. So this stuff that you know, which happens months later, when somebody says, “Yeah, we live together for five, however, long years, but we didn't follow that process in that process.” So what you're saying there is, but it's neither here nor there, because then clearly the intention was to be married under customary law, is that what you say?
Bianza Liesering 28:03
Yes, that is what I’m saying.
John Manyike 28:06
Okay, let's talk about this belief that many people have that. If you live with someone for six months, that's the one that's going during the rounds to say, if you live with someone for six months, automatically, you are regarded to be married to that person. Does South African law recognize common law marriages, and what is common law marriage?
Bianza Liesering 28:30
Currently, South Africa doesn't recognize such a marriage because we have a lot of acts governing different marriages. So the court always says that you could have chosen any one of them like this even live partnership, you enter into an agreement that this person, once you die, basically you are married. But it's in the Constitutional Court, where there's four or five days come up with, I think there was a couple was married for like a while living together for like 40 years, and they never got married.
John Manyike 28:57
You mean, they were living together for 40 years, but they were not married. So there was some test driving there, but no marriage.
Bianza Liesering 29:03
So now she obviously feels like she's entitled to what’s in his estate. And so now, I think that one is making the rounds in the court saying, okay, they will look at possibilities of if you guys are married 40 to 50 years, but it's not a done deal yet.
John Manyike 29:23
Yeah. So it's not true that if you live with someone for six months, automatically, you are married to them. Like it's doing the rounds hey we are married to be living together for six months.
Bianza Liesering 29:30
No, it's not true.
John Manyike 29:31
Okay, is the relationship between universal partnership and cohabitation, what is the situation there?
Bianza Liesering 29:37
I think it's the same basically just like we sharing rooms.
John Manyike 29:41
Yeah. But what is the legal implication of living with someone sharing financial responsibilities. Yes, you don't have the legal status of being married, but you are sharing financial obligations and so on. What is universal partnership? And how would you describe that situation where people have moved in together? Yes, they're not married. And then at some point, they decide to separate and, you know, having to determine how the assets get distributed, what is the legal status of that kind of a setup, but particularly, as far as it relates to universal partnership?
Bianza Liesering 30:26
Like I said in South Africa, that's why that case is making the rounds now. So currently, the law doesn't protect such kind of well, in South Africa, such kind of relationship, because there is so many different acts governing, different partnerships and so on.
John Manyike 30:46
I'm sure there are instances where somebody out there would have approached the court and said, “Yes, we've been living together for years. We're not married, but we were in a universal partnership.” Therefore, I want a portion of the technically joint estate, even though we're not married, but because we are in a universal partnership. Maybe explain what is a universal partnership?
Bianza Liesering 31:08
Well, like you said, it's basically just two people loving together. Like you thought you guys are just loving together, raising this child, sharing costs in the house and paying rent together. And so on the back basically, that is a universal partnership. Just it's like a marriage, it just…
John Manyike 31:27
No legal status.
Bianza Liesering 31:27
Yeah
John Manyike 31:28
So it is in her case, there was marriage there. But in the case of universal partnership, it was just merely two people, cohabiting, living together and sharing those and accumulating assets together. So are you saying partners who are living together who are not necessarily married, there is scope for somebody to claim some of your assets when you've accumulated assets having lived together for a certain period? Can you tell us more about it?
Bianza Liesering 31:59
Yeah, I think I can't comment so much about it, because we have to wait for the Constitutional Court to rectify the law basically in terms of that.
John Manyike 32:09
But to them, surely there must be a way that courts are dealing with this phenomenon called universal partnership. How does the court deal with such cases, in an instance, where one of the parties is claiming some of the assets from that relationship? Because we've been living together. The other ones bought a fridge, I bought a lounge suite, or whatever the case may be? How does the court deal with such cases where people have been living together accumulating assets as in the context of universal partnership?
Bianza Liesering 32:39
Well, for most cases that I know, they've all got dismissed so far. Basically, the court doesn't know how to treat such a relationship, as yet.
John Manyike 32:49
So in simple terms, it's like mixing salt in sugar, and then being asked to separate them?
Bianza Liesering 32:54
Yeah.
John Manyike 32:55
It's difficult to separate them.
Bianza Liesering 32:55
It’s easier if such partners just come and sit at a roundtable and say, Okay, you take this, I’ll take this and we can make an agreement.
John Manyike 33:06
Would you say it's a risk for a couple to cohabit or do a “vat en sit”, and they end up living together for years and accumulating assets? Because at the point at which they separate, the separation, or the distribution of the assets becomes very complicated for our courts.
Bianza Liesering 33:26
Yes, in South Africa, it's a big risk.
John Manyike 33:28
Are there any pending legislations as far as which will govern marriages and domestic partnerships?
Bianza Liesering 33:38
Like the universal ones? Currently it’s just the one in the Constitutional Court that I'm aware of. I'm not sure what is the name? I think the parties wanted to remain anonymous.
John Manyike 33:51
What would you advise couples that are planning to get married either through a customary marriage or through a civil union, including the premium, just maybe break it down for us the different types of marriages, what people should take into account before they get married, because this ultimately would have financial implications?
Bianza Liesering 34:15
So I always tell my clients, you can always know the person that you're with, because if I get married without an antenuptial contract, I'll go into that just now but automatically I am married in community of property, which means I'm sharing your debt even from before we got married. So automatically, your debt becomes my debt and my debt becomes your debt. For some people, it's nice if you enter into a marriage with someone that has lots of money, and you don't, you do benefit. So yeah…
John Manyike 34:51
So you don’t like [inaudible 00:34:51].
Bianza Liesering 34:51
So ultimately, yeah, I wouldn't say community of property is the best. Then there's the antenuptial contract with accrual. Accrual is basically, it's your assets and your liabilities that accrues during your marriage. So whatever you brought into the marriage, you can still go out of but what you guys have came together and accrued together basically.
John Manyike 35:19
From the date of marriage going forward.
Bianza Liesering 35:21
That's what will get divided. So that's an antenuptial contract with accrual.
John Manyike 35:26
Is that the reason it's called a delayed in community of property?
Bianza Liesering 35:28
Yes.
John Manyike 35:28
Okay.
Bianza Liesering 35:29
And then obviously, you have your antenuptial contract without the accrual, which means you take what's yours, I take what's mine, whatever we build, you just it, yeah.
John Manyike 35:41
So in other words, you're saying, if you say I do to a person who comes with a 5 million debt, you have immediately inherited that debt?
Bianza Liesering 35:48
Yes, without the antenuptial contract.
John Manyike 35:51
Whether you're there or not, even if they inherited that debt with their ex-wife?
Bianza Liesering 35:53
Yeah, that’s yours.
John Manyike 35:56
Okay, let's get final words from Anonymous. If you were to give any woman out there some advice based on your own experiences, as far as it relates to customary marriage and lobola, what would you say?
Anonymous 36:12
I think I would say we should, as women, we should be careful of the fact that we will or rather off liking the idea of being married without actually knowing what marriage entails. A whole lot of women like the fact that I want to be seen in a white dress, and but you find out later that “Oh, this was supposed to have been done.” We're supposed to have discussed a whole lot of things like to budget, your contracts. Yeah, so I think we as women, we need to be like, very careful, we need to be very careful.
John Manyike 36:52
Final words from you, Bianca, or Bianza?
Bianza Liesering 36:56
I also think why a lot of people don't enter into the antenuptial contract agreement is because it's very expensive. Because not just any attorney can sign off on an antenuptial contract, it's attorney with that has specialized or has done a separate exam and knows different Acts and so on. So I think that's why a lot of South Africans don't go that route.
John Manyike 37:24
Yeah, okay. So firstly, thank you very much Anonymous for sharing your story as sensitive as it may be. And I trust that many women out there will be listening to this podcast or watching it would feel that they've benefited a lot from your experience. And hopefully, we'll be more conscious and think things through before they say I do. And again, thanks Bianza for your contribution and giving us the legal side of things as far as it relates to marriages, because unfortunately, for many people, this is where they feel that they've lost half or the rest of their life when they lose assets and lose their identity when things go wrong, especially as far as it relates to assets. All I can say is to encourage everyone to keep being on the lookout for more topics like this one. Thank you very much.
Anonymous 38:18
Thank you.
John Manyike 38:19
And thanks for watching.