Legal Articles

You might have come across the term Antenuptial contract, Prenuptial Contract or Postnuptial contract somewhere, and couldn’t figure out exactly what these are. Well, it happens to most of us sometimes when we encounter terms that sound interesting but which we are not familiar with especially because they are not in our fields of study or profession. It then takes a bit of research to find out more.

In this article we shall describe, contrast and compare the above concepts and as we shall see, these are some of the most important concepts in life that most of us need to familiarise ourselves with.

Antenuptial Contract

An Antenuptial contract (ANC) is, aptly, a contract concluded between parties before they enter into a marriage out of community of property with or without the accrual system as per the Matrimonial Property Act 88 of 1984 (MPA). For the avoidance of confusion, an Antenuptial contract and a Prenuptial contract are the same thing, these are terms used interchangeably in different jurisdictions. The purpose of this contract can generally be summarised as to regulate the rights and obligations of individual spouses in so far as their individual estates are concerned. In other words, individual spouses can protect their assets from being affected by liabilities that burden the estate of the other spouse through concluding an ANC. Thus, an Antenuptial contract may be used to achieve any of the following:

1. Shield the assets of one spouse from being eroded by liabilities that burden the estate of the other spouse;
2. So that creditor claims against the other spouse’s estate may not be settled from the separate estate of the other spouse;
3. To determine what happens in the event of death or dissolution of the marriage;
4. To exclude certain assets from falling into the accrual;
5. To prevent the status of one spouse from affecting the other spouse e.g debt review;
6. To decide if the inheritance of the one spouse will form part of an accrual or remain separately owned by the one spouse;

Postnuptial Contract

The purposes of an Antenuptial contract and those of a Postnuptial contract are the same, although there is a major difference between the two. While an Antenuptial contract is concluded before the conclusion of the marriage, a Postnuptial contract is concluded after the marriage has already been concluded.

It often happens that parties enter into a marriage initially, in community of property and later on after some years they make a decision to alter their matrimonial property system to out of community of property with or without the accrual system. Our law provides for such situations and section 21 of the Matrimonial Property Act 88 of 1984 (MPA) governs this scenario. According to the aforementioned legislation spouses will have to, inter alia, bring a Court application to seek leave of the Court to change their matrimonial property system. The process and requirements of such an application are burdensome, and come at a premium. It is required that all creditors of the spouses ought to be notified and served with the application, assets must be declared, a draft Postnuptial contract must be presented as well amongst other things. It is advisable for parties to execute an Antenuptial contract before the conclusion of the marriage if they intend to marry out of community of property with or without the accrual system.

Van Deventer & Van Deventer Incorporated - Family Law Attorneys South Africa

At Van Deventer and Van Deventer Incorporated, our family law department is manned by professional, astute and extensively experienced legal practitioners who stand ready to assist spouses with custom made Antenuptial contracts that best suit their circumstances. Contact us for comprehensive assistance.

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