MARRIAGE: ANTE-NUPTIAL CONTRACT
In a nutshell, an ante-nuptial contract is a legally recognised and enforceable document, which determines under which matrimonial property system your marriage will exist.
A marriage will be one in community of property in the absence of an ante-nuptial contract. In terms of in community of property, there is one joint estate that belongs to the spouses in equal undivided shares. The estate consists of all assets and liabilities acquired before and during the marriage. “What is mine is yours; and, what is yours is mine.”
An ante-nuptial contract makes another form of matrimonial property system apply to the marriage. In other words, the marriage will be out of community of property. Out of community of property means that the spouses’ estates do not merge into one estate upon marriage. There are three different forms of out of community of property.
There is out of community of property with accrual. Accrual means that upon the dissolution of the marriage, whether through death or divorce, the spouse whose estate shows no accrual, or a smaller accrual, acquires a claim against the other spouse for an amount equal to half of the difference between the accrual of the respective estates.
In terms of with accrual the starting estate’s value can be at R0, this means that there are no assets excluded from the accrual. Then there is out of community of property with accrual, where each estate has a value at the commencement of the marriage; and so, there are assets that are excluded from the accrual.
Another form of out of community of property is out of community of property without accrual. Under this form, the marriage consists of two separate estates, each containing the respective spouses’ personal assets and liabilities incurred before and during the marriage. Each estate belongs exclusively to the respective spouse. Neither spouse has a claim against the other spouse’s estate at the dissolution of the marriage.
In terms of the contents, spouses are free to include any provision if it is not contrary to the law, good morals or the nature of marriage. Otherwise, the contract must be entered freely and voluntarily, the spouses must have the capacity to act, there must be a consensus between the parties.