Marriage is a institution based on trust between two loving partners. Unfortunately, that trust is not always rewarded as not all marriages work out. This can lead to messy legal disputes when it comes to the division of assets. That is why having a postnuptial agreement can give each partner in a marriage peace of mind.
A postnuptial agreement is a legally binding document created for married couples after their wedding day. Like a prenuptial agreement, it outlines the division of assets, finances, child custody, and other pertinent matters in the event of a divorce or separation. This helps protect the individuals’ assets from before the marriage, and protects them from debt created by their partner.
There are numerous reasons a married couple may enter into a postnuptial agreement. Some common reasons include the following:
Many couples seek a postnuptial agreements to protect precious assets they own. This is because with this form of agreement the divisions of assets in case of divorce are determined, giving the couple peace of mind that their assets are safe.
Many marriages are automatically in community of property as couples don't always know there are other options. Therefore many may enter into postnuptial agreements to change their marital regime to better suit their circumstances and financial goals.
In many marriages one partner will stay at home to care for the children, often to the detriment of their career. An agreement like this often helps to address the financial implications of this sacrifice, especially in cases of separation.
There are numerous benefits for couples to enter into a postnuptial agreement. These include the following:
While discussing financial responsibilities can be a tough conversation, a postnuptial agreement clearly defines the financial responsibilities of both parties. This leads to a more open and trusting relationship, while reducing conflicts and misunderstandings about financial matters.
This type of agreement clearly defines the financial arrangements and asset division in case of divorce. This means there are less lengthy, costly, and often nasty legal disputes involved in the divorce proceedings. Making the process easier and more amiable.
The primary benefit of a postnuptial agreement is the protection of assets. This form of agreement clearly defines who owns what property, especially in cases of separation and divorce. This provides certainty to the individuals that their precious assets will remain their property no matter what the outcome of their marriage.
As a postnuptial agreement is a binding legal contract there are certain legal requirements to establish one. These include the following:
Written format: A postnuptial agreement must be in writing, this is to avoid potential misunderstandings or disputes regarding its contents. Verbal agreements are not valid or legally binding for these purposes.
Voluntary consent: The agreement must be signed by both parties in the marriage without any form of coercion or external influence from others.
Sound motivations: The courts will often want to be sure that there are valid reasons for the proposed change to the marital regime. These reasons must be outlined in the application and fully motivated, explaining why the current regime doesn’t suit the couple’s circumstances or goals.
As we have seen there are many reasons for a postnuptial agreement, and many benefits this agreement provides. If you and your spouse feel that your marital regime is no longer appropriate for your goals or circumstances. Apply online with us to take the first steps towards a more certain financial future.
Fill in this form to get a call from one of our attorneys about your postnuptial contract.
Yes, postnuptial agreements are legally recognized in South Africa. A postnuptial agreement is a contract entered into by spouses after they are married, outlining how their assets will be divided in the event of divorce or death. These agreements are governed by South African contract law and must meet certain legal requirements to be enforceable.
The primary purpose of a postnuptial agreement is to provide clarity and certainty regarding the division of assets and financial matters in the event of divorce or death. Couples may choose to enter into a postnuptial agreement to address changes in their financial situation, business interests, or family dynamics that have occurred since they got married. Additionally, a postnuptial agreement can help resolve conflicts or uncertainties and protect each spouse’s interests.
While both postnuptial and prenuptial agreements serve similar purposes, there are some differences between the two. A prenuptial agreement is entered into before marriage, while a postnuptial agreement is entered into after marriage. In terms of legal validity, both types of agreements are generally enforceable if they meet the legal requirements.
However, some may argue that prenuptial agreements offer certain advantages over postnuptial agreements. For example, prenuptial agreements allow couples to address potential issues and make decisions with a clear mind before the emotional and financial entanglements of marriage. Additionally, prenuptial agreements may be viewed more favorably by courts as they demonstrate forethought and planning.
In South Africa, the terms “antenuptial agreement” and “prenuptial agreement” are often used interchangeably to refer to a contract entered into before marriage, governing the matrimonial property regime. Both types of agreements allow couples to specify how their assets will be divided in the event of divorce or death.
The primary difference lies in the terminology used and the legal framework. “Antenuptial agreement” is the more common term used in South Africa to refer to premarital agreements, while “prenuptial agreement” is more commonly used in other jurisdictions. Despite this difference in terminology, the legal principles and requirements for both types of agreements are generally the same in South Africa.