Charné van der Walt runs an independent fee-based firm called "Lemons into Lemonade Financial Planners CC" in Stellenbosch. She has been in the financial services industry since 1991.
My husband and I are married just over a year and out of community of property without accrual. He wants us to change the contract now to in community of property. I am financially more secure and have a house, furniture, and vehicles on my name that is fully paid (before I met him) and he has a new bond on property and is still paying off on his vehicle (which he bought after the wedding).
Now he wants it to be done this way so that he can feel more secure financially should something goes wrong in our marriage. He is scared of the fact that he will "walk out" with nothing but debt as we are currently living in the house.
My question is can a prenuptual contract be changed after a wedding or does he need to try resolve it in the settlement agreement should the marriage ever come to an end?
And how can I make him feel more secure without having to go to the extreme of trying to change contracts to in community of property which will put me in a vulnerable situation if something goes wrong along the way?
This is bringing much strain to the relationship and I am caught up in the middle of wanting him to feel secure but also not to put myself in a possible destructive position should something go wrong.
Your help and advice will be much appreciated.
Your question has possibly been of the tougher ones that I had to answer!
I'm sure you can change the contract but how and at what cost, you will have to inquire from a lawyer.
Whether this should be an option for you is not something I can advise you on without knowing your complete situation.
There are also certain circumstances with couples that may lead automatically to a choice on how to get married.
If I have clients who are to be married and one party is involved in his or her own business, then I may (for example) advise against in community of property simply to protect the other partner if something happens to the business. It's not a choice to exclude the one but a decision to protect the one with assets. If the business is then affected by economic factors which the business owner had nothing to do with, then at least the one with assets can keep the assets and keep on providing for the family.
I also have clients who, despite my advice in their circumstances to choose out of community, prefer in community of property because of their religious beliefs or even pressure from the culture's tradition or their families.
Unfortunately your husband is looking at this from a wrong perspective. He is only seeing how he is excluded and not that it also hold benefits for him.
If anything happens to him (untimely death) or to his health that affects his ability to earn an income, that your assets will not be subject to his creditors and therefore give you both more protection to be able to continue to live and have a paid home. The fact that he can, in this way, also help you to protect what you have built up is also a form of love and not just to include him in all your assets.
Staying married or not is not the only two things that can happen to you. One of you can die or become medically unfit to work and that will also influence the decision of the type of marriage contract you choose.
I can understand when clients want to be married in community of property and will respect their choice but you are giving half of your assets and debt to the other person. If one passes away, both of your assets and liabilities are included in a joint estate and it increases the estate problems and costs unnecessarily.
If your husband is only seeing that he is excluded, I wonder if there are perhaps root issues that may have nothing to do with the assets and the fact that he only has debt.
You can make sure that your Will is correct by ensuring that he will inherit your assets when you pass away. But this goes both ways because he then must take out life assurance to show you again that he will not only leave you with debt and estate costs which you will have to take responsibility for as his wife.
Please know that I'm very much for the whole idea of balance and sharing of both privileges and responsibilities that go with it. But I want to encourage you also that times are changing and we do not get married at 18 years where, in most cases, both have nothing and build an estate together.
Even though some people seem to just get richer by the day, others are becoming more and more poor. There just is not any more guarantees and the euphoric idea of 'having everything together' simply does not always make sense in today's economy. Life offers much more risks now in terms of economies and losing jobs etc. than ever before. To change something that is stable to open it up for risk where your husband may not even be responsible for, is simply being irresponsible and has nothing to do with love.
Perhaps you should consider to seek a counsellor's opinion too where your husband can learn to respect that your choice is not a decision against him or your marriage.