An antenuptial contract, also known as a prenuptial contract, prenup, or ANC, is a legally binding contract entered into by two individuals before they are to be married. This contract sets out how financial matters like assets and debts are to be handled in the event of divorce or death. While this is usually a sensitive topic an open discussion about this fosters trust and strengthens the relationship, while also protecting the interests of both parties.
Broadly speaking there are two types of marriages in South Africa. These are marriages in community of property, and marriage out of community of property (Both with accrual and without). We will take a closer look at these arrangements below:
A marriage in community of property is one without a antenuptial contract in place. Community of property means that all financial assets are shared by both partners, including responsibility for debts. If you don't do an antenuptial agreement before you get married, you will be married in community of property.
A marriage that has an antenuptial contract in place is said to be out of community of property. This is because assets are not equally shared between partners, as the antenuptial clearly defines how assets are distributed. Additionally, this can be done with or without an accrual system. An accrual system relates to the increase in wealth during the marriage, and helps the partner with a smaller accrual to claim some of the difference from their former partner.
There are numerous benefits to an antenuptial contract for those entering into a marriage. These benefits include the following:
As asset division is clearly defined in an antenuptial contract, they assist individuals in protecting their premarital assets. Avoiding ugly and lenghty disputes over property in the event of a divorce.
Antenuptial contracts are not a one size fits all legal arrangement. These contracts are based on the circumstances and needs of the individuals. Allowing you to tailor them to suit yours and your partners preferences.
The primary benefit of an antenuptial contract is that it provides individuals with peace of mind as they head into their marriage. As they can trust that no matter what their financial assets are protected.
These contracts allow individuals to protect items they hold dear. Any item that you feel must belong to you can be listed in the antenuptial contract to ensure you remain the owner no matter what.
An antenuptial contract protects individuals from their partner's past and future debt. This is especially beneficial for business owners as should they enter liquidation their spouses assets are protected. Giving both partners peace of mind.
Antenuptial contracts facilitate financial planning for the future. By clearly outlining each spouse's rights and obligations regarding property and finances, couples can effectively plan for various scenarios, such as retirement, inheritance, or unexpected events.
There are certain legal requirements with regards to the registration of antenuptial contracts to ensure that it is valid. These are as follows:
An antenuptial contract must be signed before the marriage takes place.
An antenuptial contract must be attested to by a registered notary
An antenuptial contract must be registered with the Deeds Office within three months of it being signed
In the modern technological age an antenuptial contract can be applied for online. The parties will still need to sign the original and send it to the notary for registration in the deeds office. This allows couples to easily gain the peace of mind this contract provides before entering into a marriage. Helping them have a clear and open understanding of how their financial assets will be divided should the marriage end in divorce or death. Allowing them to protect their assets and avoid lengthy and costly legal disputes that can often tear families apart. So for your peace of mind apply online today for an antenuptial contract that will keep you in control of your finances.
Fill in this form to get a call from one of our attorneys about your antenuptial contract.
The terms “prenuptial agreement” and “antenuptial contract” are often used interchangeably, but they actually refer to different legal documents. A prenuptial agreement is a contract entered into by two individuals before they get married, outlining how assets will be divided in the event of divorce or death. An antenuptial contract, on the other hand, is a specific type of prenuptial agreement recognised in South Africa. It is signed before marriage and registered after marriage.It governs the matrimonial property regime that will apply to the spouses’ assets during their marriage and upon its dissolution.
While an antenuptial contract offers several benefits, such as protecting assets acquired before marriage and providing clarity on financial matters, there are also some disadvantages to consider. One disadvantage is that it requires legal formalities and incurs costs for drafting and registration. Additionally, if not carefully drafted, an antenuptial contract could potentially lead to disputes or unintended consequences during divorce proceedings. It’s essential for both parties to fully understand the implications and seek legal advice before entering into such an agreement.
The primary difference between a community of property regime and an antenuptial contract lies in how assets and liabilities are managed during the marriage and upon its termination. In a community of property regime, all assets and debts acquired before and during the marriage are shared equally between the spouses, regardless of individual contributions. On the other hand, with an antenuptial contract, spouses can choose to exclude certain assets or specify a different arrangement for the division of property in the event of divorce or death.
In South Africa, there are two types of antenuptial contracts: with accrual and without accrual. A marriage with accrual means that, upon dissolution of the marriage, the increase in the value of each spouse’s estate during the marriage is divided equally, unless otherwise stipulated in the contract. In contrast, a marriage without accrual means that each spouse maintains separate estates, and there is no sharing of assets acquired during the marriage on dissolution of marriage either through death or divorce.
In our law that an ANC cannot be amended after conclusion of the marriage, even with both parties’ consent. It can only be amended by a Court order if the contents of the written contract did not give effect to the actual agreement between the parties.
Prospective spouses are free to amend or cancel the antenuptial contract before their marriage, as it is only registered after the marriage
Once the antenuptial contract has been registered the cannot be altered between the parties. An application will have to be made to the High Court by both spouses, and if a valid reason exists the antenuptial contract can be rectified or amended in order to reflect the true intentions of the parties. All other parties concerned must consent to the rectification – the court will always reserve the rights of the creditors and third parties.
An antenuptial contract is a legal document that spouses enter into before getting married to determine how their assets will be managed during the marriage and distributed in the event of divorce or death. The contract can specify whether assets are shared or kept separate, as well as any conditions or limitations regarding property ownership. It’s crucial for couples to consult with a legal professional to draft an antenuptial contract that meets their specific needs and complies with South African law.
In South Africa, a will and an antenuptial agreement serve different purposes and generally do not override each other. An antenuptial agreement primarily governs the division of assets during the marriage and upon its termination, while a will dictates how a person’s assets will be distributed after their death. However, it’s essential to ensure that the provisions of both documents are consistent and complementary to avoid any conflicts or confusion.
The timeline for registering an antenuptial contract can vary depending on various factors, such as the complexity of the contract and the efficiency of the legal professionals involved. Typically, the process involves drafting the contract, obtaining the necessary signatures, and registering it with the South African Deeds Office. While some straightforward cases may be completed relatively quickly, it’s advisable to allow several weeks for the entire process to ensure that all legal requirements are met and the contract is properly registered. Consulting with a legal expert can provide a more accurate estimate based on the specific circumstances