Antenuptial Contracts

(ANC-Marriage Contracts-Prenups)

What are Antenuptial Contracts (Prenuptial Contracts)?

Definition: An Antenuptial Contract, also known as a Prenup, Prenupt, Prenuptial Contract, marriage contract, prenuptial agreement, antenuptial agreement, or premarital agreement, is a contract entered into by two people before their marriage or civil union, to stipulate the terms and conditions for the exclusion of community of property between them.

The Antenuptial agreement must also be notarised by an attorney notary and registered with the Deeds Office otherwise it is of no effect. Failure to do so will result in a complex process to enact a postnuptial agreement.

(See: Matrimonial Regine Changes)

The terms and conditions of the antenuptial contract may not be illegal, immoral or contrary to public policy.

Each spouse usually keeps his or her separate property and has complete liberty to deal with that property as he or she chooses.

If one spouse is declared insolvent, the other’s property is protected from the insolvent spouse’s creditors, subject to Section 21 of the Insolvency Act.

Antenuptial Contracts and Deceased Estates

Antenuptial contracts are seen as the cornerstone of a successful union. It gives financial independence to each spouse within the marriage.

Antenuptial contracts dictate the financial future of the two parties after the marriage is terminated. It also directs how the estate assets will be distributed, not only after a divorce but also after the death of a spouse.

An antenuptial contract is an essential document in the eyes of the South African law, and failure to sign an antenuptial agreement means that you automatically get married in community of property

Why should I consider registering an Antenuptial Contract?

There are many reasons why you should prefer to enter into an Antenuptial Contract in order to be married out of community of property.

The most common reasons are that:

• You do not want to be held liable for any debts that your spouse may have incurred before the marriage;
• You do not want to be held liable for any debts that your spouse may incur during the marriage;
• You want to protect assets such as a house from creditors, particularly if one of the spouses has a business of his or her own. Registering the house in the name of the other spouse can provide protection of this family asset.
• One or both spouses may have assets acquired before the marriage that they don’t want to become part of a joint estate;
• You do not want to obtain the consent of your spouse to enter into financial transactions;
• During the marriage each spouse retains control of his or her own property, builds up his or her own assets and estate and each is responsible for his or her own debts.

The Benefits of an Antenuptial Contract

An antenuptial contract is signed by the couple prior to their marriage, in order to be excluded from the community of property regime.

Having an antenuptial contract offers a number of benefits, including:

• It prevents an intended marriage from automatically being in community of property.
• It offers transparency in the relationship by recording the duties, rights and consequences of the marriage.
• It prevents unnecessary disputes between the two parties when the marriage is terminated.

The two options regarding an Antenuptial Contract

An Antenuptial Contract excludes community of property. This can only be achieved by entering into an Antenuptial Contract before you get married.

There are two accrual options:

• marriage out of community of property with application of the accrual system
• marriage out of community of property without application of the accrual system

If you conclude an Antenuptial Contract prior to your marriage, the accrual system will automatically apply under the Matrimonial Property Act of 1984, unless it is expressly excluded in the contract.

‘Accrual’ means increase. The accrual system is a form of sharing of the assets that are built up during the marriage.

The underlying philosophy in respect of the accrual system is that each party is entitled to take out the asset value that he or she brought into the marriage, and then they share what they have built up together.

Under both options (with or without the accrual system), one spouse’s property cannot be sold to pay the other’s creditors if the other becomes insolvent – in contrast to the case where the parties are married in community of property.

Van Deventer and Van Deventer Incorporated

While preparing yourself for the termination of your marriage might not be what many people consider 'romantic', nothing is worse than losing your hard earned assets simply because you failed to sign an antenuptial contract.

Make signing an antenuptial contract part of your marriage plan, by contacting Van Deventer and Van Deventer Incorporated today.

We offer the following comprehensive service to local and  foreign couples:

• The drafting of a tailor-made antenuptial contract.
• A letter for the marriage officer that confirms that an antenuptial contract had been executed.
• Registering the antenuptial contract with the Deeds Office.
• Protecting your antenuptial contract.

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