The importance of an antenuptial contract, cannot be overstated. One may say that an antenuptial contract is one of the most important documents that a person will ever sign. An antenuptial contract is entered into prior to a couples’ marriage, the purpose of which is to regulate the terms and conditions of the marriage. For example, if your spouse becomes indebted, an antenuptial contract will protect you against your spouse’s’ creditors.
WHAT ARE THE DIFFERENT TYPES OF MARRIAGES IN SOUTH AFRICA?
There are three different types of marriages and types of marriage contracts in South Africa: marriage in community of property, a marriage out of community of property without accrual, and a marriage out of community of property with accrual. Each type has different legal and financial implications that couples should understand before getting married.
MARRIAGES IN COMMUNITY OF PROPERTY
A marriage in-community of property becomes applicable when couples do not enter into an antenuptial contract. If parties were to marry in-community of property, all the assets and liabilities of both spouses, whether they have been acquired before, or during the marriage form part one joint estate, which will be divided equally between the spouses should the marriage end.
MARRIAGES OUT OF COMMUNITY OF PROPERTY
An Antenuptial contract is required for parties that wish to marry out of community of property. This type of contract separates the spouses assets and liabilities. Each party is liable for their own debt, and each party’s assets are protected from creditors. On dissolution of the marriage, each party will retain their own assets and be responsible for their own debts.
MARRIAGE OUT OF COMMUNITY OF PROPERTY WITH INCLUSION OF THE ACCRUAL SYSTEM
In this type of marriage regime each party is the owner of their own estate and each party is liable for their own debt. Inheritances, legacies and donations are excluded from the accrual calculation, unless the parties agree to terms and conditions which state otherwise in their Antenuptial contract.
If the parties divorce, each spouse’s estate is calculated by determining a nett asset value of the estate which is determined by calculating all the assets and liabilities and thereafter subtracting the liabilities from the assets. The spouse whose estate is smaller will be subtracted from the value of the larger estate and the difference between the two estates is split.
It is important that parties deciding to enter into an antenuptial contract must do so before the marriage is concluded as the antenuptial contract will need to be lodged with the Registrar of Deeds, and the individual marrying the parties will furthermore require a letter from the Attorneys who had prepared the antenuptial contract confirming that an antenuptial contract exists.
HOW CAN I CHOOSE THE RIGHT MARRIAGE CONTRACT?
Choosing the right marriage contract in South Africa is an essential step for any couple preparing to marry. The decision determines how assets, debts and property will be managed during the marriage and if it ends. Each of the types of marriages and types of marriage contracts in South Africa offers different levels of protection and independence, so couples should choose one that best suits their personal and financial goals.
When deciding, consider:
- Financial independence : Would you prefer to share everything equally or keep finances separate?
- Existing assets or businesses: Do you need to protect personal or business property?
- Debt responsibility: Should each spouse remain liable for their own debts?
- Inheritance and family planning: How should inheritances or future assets be handled?
It is always advisable to consult a qualified attorney or notary before finalising your decision. Professional advice ensures that your antenuptial contract is valid, protects your interests, and complies with South.
Contact our offices should you require an ANC or personalised guidance on choosing the right marriage contract for your situation.
FREQUENTLY ASKED QUESTIONS
- When should I sign an antenuptial contract?
Before the marriage and registered with the Registrar of Deeds. - Can an antenuptial contract be changed after marriage?
Only through a High Court application in specific circumstances. - Which contract best protects assets?
Out of community of property without accrual provides the most protection; the accrual system balances protection with shared benefits.
Author – Kate Bailey – Hill
