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How will my marriage "contract" translate into Australian?


RedPanda
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I came across the topic in another thread, and it started me wondering...
In RSA I understand exactly what it means legally speaking, for me to be married to my husband. [We are married Outside communion of property, with accrual. And one or two items specifically excluded from the contract.]

Are there any members on the forum that are either qualified in the legal field and work with this, or that have gone to some extra trouble to find out exactly how this works?

How will our marriage affect the following, in Australia:

  • Making debt (with the ideal to limit liability by going into the agreement as an individual)
  • Owning property
  • Taxable income
  • In the event of a divorce (I have read it's automatically a 50:50 split of assets, unless circumstances like children enter into it) And I've also read that an antenuptial contract will be honoured, provided it's legal?
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For any  antenuptial to be enforced in Australia it has to be fair to both parties. Now Australians when they draw up their contracts know what the courts will consider as fair. When people drew up their contracts in South Africa they probably didn't even know that would move to Australia, never mind if there contract would be considered fair in an Australian court.

But one of the big things that will more than likely result in an antenuptial contract drawn up in RSA not been considered fair is if both parties did not receive independent legal advise. So think back, if you didn't each get independent legal advise your contract will more than likely be set aside and the estate split up based on a non contract marriage, basically 50/50, adjusted for children etal.

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Good question RedPanda! We're in a similar position. Would be interested in the response.

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Practical experience :

Debt - my husband is not "merged" with me. You have to say what your monthly expenses are and what you earn and a decision is made on that. If you don't earn enough to repay the debt they will look at both incomes and either make it a joint obligation or ask your spouse to stand guarantor but there is special consumer protection legislation that may have to be adhered to, in particular if you guarantee someone else's debt they may have to ask you to get independent legal advice to ensure you understand what you are signing and then you have to do a stat dec confirming that you have done so.  You are not simply lumped together, but if you sign guarantor you will be liable if the other person doesn't pay.  If you own property together which is used as security your creditor will want both spouses liable so that they can go after the property if you default. 

Owning property: if you don't specify that you want to own as tenants in common with specific ownership percentages you will own as joint tenants. Upside of joint tenants is that if 1 dies the other gets the whole property automatically.  If you go tenants in common you don't and there are potentially some tax benefits. There are pros and cons for both so get legal advice when buying property.

Tax: you do separately. If 1 doesn't work and you earn less than a threshold amount you can get a small tax break. I strongly recommend you get some tax help to ensure you claim the right tax breaks.

Bottom line - speak to a professional, we did when we landed.

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Excellent Question! Look forward to the answer!

 

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Ah I look forward to this answer! We are in the same "contract" as RedPanda. 

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3 hours ago, Jessi said:

Well I am attempting to answer this question by various sources from research
There is far too much to actually type so I will attach links :)

Making debt?

https://www.experian.com/ask-experian/20060322-marriage-doesnt-merge-your-new-spouses-bad-credit-with-your-good-history.html

So with debt, for all the big stuff, they lump you together anyway? Wait, that website is for USA?
Ok, I will need to look specifically for Australia.

 

Owning property?

http://www.tas.relationships.org.au/resources/booklets-and-brochures/a-fair-share-negotiating-your-property-settlement

This one is good, thanks! :) It looks like you can set up a "Property Contract" which looks pretty much like what we call an antenuptial contract. And it will be honoured. This one is good news. I wonder if it's possible to go to an Australian lawyer and just get the South African contract rewritten and made legal in Aussie?

 

Tax?

https://www.ato.gov.au/Individuals/Tax-Return/2013/Tax-return/Spouse-details---married-or-de-facto/

I'm sorry, but I can't see if the information is for all married people, or if it is for people who are doing a tax return on behalf of their spouse? But I'll scratch around on the site and see if I can find the information.

 

 

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I wonder if it's possible to go to an Australian lawyer and just get the South African contract rewritten and made legal in Aussie?

If it's anything like wills, no, we had to have new ones drafted by a lawyer here in Australia to be binding, two 'simple' wills (no trusts etc) to the tune of $2,000.

Cheers

Matt

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1 hour ago, AFreshStart said:

I wonder if it's possible to go to an Australian lawyer and just get the South African contract rewritten and made legal in Aussie?

If it's anything like wills, no, we had to have new ones drafted by a lawyer here in Australia to be binding, two 'simple' wills (no trusts etc) to the tune of $2,000.

Cheers

Matt

$2 000 is a lot...wow
I can see we'll be doing some initial consultations and then some serious discussions. Thanks for the heads-up!

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1 hour ago, RedPanda said:

$2 000 is a lot...wow
I can see we'll be doing some initial consultations and then some serious discussions. Thanks for the heads-up!

Wills can be had for free as well, even if you paid $2000 dollars for the will you will still be charged for the execution. Have a look here   http://www.tag.nsw.gov.au/what-is-a-will.html

There`s also another thread or two that discuss wills - basically you need an SA will for SA assets and an Aus one for Aus assets.  Also important that the one will does not negate the other as wills normally do.

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@19yearsoutofrsa Thanks, that explains it simply.
I think we will probably have a consult with an Australian lawyer to explain all the details to us. It's not that we have a complicated agreement, it's just that we have to know what it says, and what the implications are. We don't like surprises.

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