By Tokiso TKay Nthebe
Making the marriage proposal after months of saving for the engagement ring can be nerve-wracking. But nothing is as awkward as the conversation about which marital contract to consider.
What are the different marital contracts?
As discussed in the previous blog posts, Lesotho has two types of marriages – customary law marriage and civil law marriage. Under civil law marriage, there are two marital regimes namely marriage in Community of Property and Marriage Out of Community of Property.
Civil Marriage Out of Property is further divided into two subcategories.
- Marriage out of Property with accrual
- Marriage out of Property without accrual
Let’s talk about civil law marriages in community of property
Civil law marriage in Community of property is simple and common. Under this marital regime, what is mine is yours and what is yours is mine. It means that both spouses are jointly liable for the liabilities and assets they jointly own. Each has an equal share of 50%.
Let’s talk about civil law marriages out of community of property with accrual.
Civil law marriage out of community of property with accrual means that any property the parties acquired as bachelor and the bachelorette will not form part of the joint estate. Say for example you have an Audi and I have a Mercedes Benz before we got married, these will not constitute part of the matrimonial estate. After getting married, the couple buys a Toyota Fortuner, which will form part of the joint estate under Marriages Out of Community of Property with Accrual. Only property acquired prior to the marital agreement is excluded.
Let’s talk about marriages out of community of property without accrual
When it comes to ante-nuptial agreements or marriages out Community of Property without Accrual, the parties will never share property – any assets or liabilities. Your Audi will forever be yours and my Mercedes Benz will be mine. The Toyota Fortuner will either be mine or yours depending on who bought it. In a nutshell, an antenuptial agreements without accrual, the spouses will never share property.
How popular are antenuptial agreements without accrual in Lesotho?
It is not so popular. The majority of Basotho are Christians and according to Christian Laws when parties get married, they consider themselves as one and they share assets and liabilities equally. So, the civil law, marriage out of Community of Property without accrual is not popular.
What are your views on antenuptial agreements?
There is a sad narrative in Lesotho where we think that people who get married under community of property genuinely love each other and will not divorce. Personally, I prefer a civil law marriage out of Community of Property because when you get married in Community of Property it is like you are putting all your eggs in one basket. Should you trip and fall while carrying that basket, you will end up with nothing but eggshells.
Under the marital regime out of Community of Property, should you get bankrupt, lose all your money, and be declared bankrupt or insolvent, there is still the other spouse’s share of the estate to survive to rely on or depend on. But in an event where all the eggs are in one basket, if things go wrong, then the couple is doomed because the entire matrimonial estate is affected.
Am I able to change my marital contract?
Absolutely, you can change, but you must convince the court about that. I recall a court case which I would like to not mention names, but two spouses were married in community of property. Unfortunately, the other spouse was addicted to gambling and would spend 90% of the matrimonial money on gambling and would lose big time. The wife approached the High Court and sought to convert their marriage from marriage in community of property to a marriage out of community of property.
Now, before that conversion can happen, the matrimonial property must first be separate. By virtue of being married in community of property, it means that the property is already joined. There is therefore a need to separate the assets and liabilities before the marital regime can be converted into a marriage out of community of property.
