An Antenuptial contract is one of the most important documents partners entering into a marriage will ever sign.
In South Africa, if you are married without an Antenuptial contract (“ANC”), you are automatically married in community of property. Many people feel that drawing up an ANC is preparing for divorce, however, this is not the case, as an ANC also protects you and your assets if you or your spouse die.
If you have an ANC, you will be married out of community of property and including the accrual, unless the accrual system is specifically excluded. This means that each spouse retains his or her separate property and has complete freedom to deal with that property as he or she chooses. The accrual system is a form of sharing of the assets that are built up during the marriage. The underlying philosophy 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 accumulated together during the marriage. Having an ANC in place ensures that you and your spouse are regarded as separate legal entities and there is no joint estate. This means that you are protected from your spouse’s creditors and vice versa. So, for example, if you are married in community of property, and one of you has a gambling problem and runs up huge debts, you and your spouse would be jointly responsible for paying back such debts. If, however, you are married in terms of an ANC, you will be protected against such conduct. An inheritance, a legacy or a donation which accrues to a spouse during the subsistence of the marriage, as well as any other asset which was acquired by virtue of the possession or former possession of such inheritance, legacy or donation, does not form part of the accrual of an estate, except in so far as the spouses may agree otherwise in their antenuptial contract or in so far as the testator or donor may stipulate otherwise
Both you and your intended spouse should consult with the attorney who is drawing up the ANC, in order that both of you are fully aware of the consequences of the ANC. It is also important to consult with someone who is neutral and who can mediate the terms of your ANC. The ANC must be signed by both parties, in the presence of a Notary Public, prior to the marriage and must be registered in the Deeds Office within three months of the date of the marriage. If you failed to enter in an ANC prior to your marriage, or if you wish to alter the terms of your ANC, this is possible by way of application to the high court.
Whether you wish to enter into an ANC or amend your existing ANC, we can assist you to do so and explain the options available to you and procedures necessary to give effect thereto.
For direct answers to your specific personal questions, please contact us directly.