Will you marry me? This is the question thousands of gay and lesbian South Africans are preparing to ask—or answer—come 1 December. To be able to ask this question, and really mean it, is an exciting prospect. But it can also be scary, because marriage is a serious commitment. We are all quite familiar with the social implications of this commitment, but what does it mean legally? What exactly are the responsibilities we’re taking on when we say yes?
In many ways, marriage is like any other contract. Spouses have a lot of freedom to decide exactly what sort of promises they want to make to each other. Marriage is different from other contracts, however, in that a few obligations will apply no matter what the spouses want. And if the partners decide not to lay all their economic arrangements upfront, marriage law has some default provisions that will apply in the absence of any formal agreement. These terms also have implications for your obligations to third parties, such as creditors.
If you are already in a committed relationship, you should also be aware that some of the benefits you and your partner currently enjoy as domestic partners may be taken away if you do not marry. Right now, it looks like most domestic partnership benefits will stay in place, but it is impossible to predict if that will remain true once marriage becomes an option.

Invariable Consequences of Marriage
A few obligations are mandatory consequences of marriage, so you and your prospective spouse are powerless to change them, even with an antenuptial (which means “before marriage”) contract. These invariable provisions include:

• Reciprocal Duty of Support
When you get married, you and your spouse will be required to support each other enough to maintain your usual standard of living as a couple. This duty extends to such things as food, clothing, and health care. Depending on your circumstances, it can also extend beyond divorce or one spouse’s death.

How much support is enough? This depends on a few things, most importantly each spouse’s financial means, and your usual standard of living as a couple. For example, if one of you works only part-time and makes less money, that person will not be expected to contribute as much to her spouse’s care as would be expected of the spouse who earns more. If one of you does not work and has no access to other financial resources, that person is not required to take care of the spouse financially.

Unless your financial position changes dramatically, you will be expected to contribute enough to maintain your usual standard of living. Your spouse has a right to support from you at the level that is appropriate to your joint standard of living—otherwise he can take you to court.

• Provision for Household Necessities

Related to the duty of support, you are each required to contribute to the maintenance of your marital home to the extent your income allows. You have to pay the water and lights, buy food for the dog, and fix the leaking roof. This also means that each of you has the right to contract with a third party who provides such services. If the Eskom bill is in your name and for some reason you cannot pay, Eskom can require your spouse to pay.

• Access to the Marital Home
Each spouse has a right to stay in the marital home. No matter who bought it, who pays the rent, or who makes more money, you cannot kick your spouse out. The only exception to this is in cases of domestic violence.

• Parental Rights and Duties
If, after you marry, you adopt or give birth to a child conceived by artificial insemination, both spouses are automatically considered the child’s parents. That means you both have rights and duties with respect to the child, including the duty to provide for the child’s maintenance. This is currently the law for those of you in same-sex domestic partnerships as well.

Outside of these invariable provisions, you and your beloved have a lot of leeway to decide what rules will govern your marriage. Most particularly, you can decide who gets ownership over the assets (including cash) you each bring into the marriage, or how you will divide any increases or decreases in your net worth after you marry. Unless you explicitly declare otherwise, the law will assume that your property is jointly held by both of you. This is known as “community of property.”
Under community of property, you and your spouse will jointly share all your assets and liabilities—including those each of you bring into the marriage. Instead of community of property, you may also choose simply to share any increase that occurs in your net worth after you marry. This is known as “the accrual system”. Under the accrual system, the assets and liabilities you each bring into the marriage remain your own.
Finally, you can choose to set up your own rules for sharing property, as well as for other issues, with an antenuptial contract—that is, a contract you both agree to before you get married. If you wait until after you get married, the process required is more extensive—plus, of course, your spouse at that point may not wish to give up any rights s/he already enjoys to your property.
Whatever rules you choose, remember that you cannot contract away your obligations to provide maintenance or pay for household upkeep, or otherwise alterable any of marriage’s invariable consequences.
The economic rules of marriage can be quite complex, and different couples will have different needs. If you have complex needs, you should consult a lawyer as you think through these important issues. You can also check good online resources, such as www.legalcity.net, for more information. With the help of these resources, marriage property law can give you the security you need to build a marriage based on honesty, trust, and mutual support.