What is an Antenuptial Contract?
A contract entered into prior to marriage with the purpose of regulating the terms and conditions of the marriage. The parties to an antenuptial contract are the prospective spouses. Only prospective spouses that are free to marry each other or enter into a same-sex civil union may enter into an antenuptial contract.
Why is an Antenuptial Contract important?
If your spouse becomes indebted, to protect yourself against your spouses' creditors, it is crucial that you have an antenuptial contract that is registered at the Deeds Registry. The antenuptial contract must be signed prior to the marriage and registered within three months after signature.
What happens if you are married but forgot to enter into an Antenuptial Contract or want to change your marital regime?
Luckily for you there is a solution albeit a very costly solution. The High Court may authorise the postnuptial execution of a contract which in effect is an antenuptial contract if certain requirements are complied with. Contact our offices for more information in this regard.
The different types of marital regimes.
Read through the different types of marital regimes to see which one will best suit you and your prospective spouse. If you are still uncertain about which system would work best for you after reading this information, please contact our offices to set up a consultation in order to discuss the different regimes in more detail.
Community of Property
If you fail to enter into an antenuptial contract, you will automatically be married in community of property. You will share a joint estate with your spouse, meaning that you will be joint owners of everything within the joint estate, however you will also be liable for debt incurred within the joint estate, therefore if your spouse is reckless and incurs debt, you will be liable for the debt.
Here are a few more disadvantages:
If you sell immovable property, shares, stock, jewellery or any other property held as investments, you will need your spouse's written consent in order to do so.
If you wish to enter into a credit agreement, you will need written consent from your spouse.
If you intend to bind yourself as surety, you will need written consent from your spouse.
If you become insolvent, creditors are entitled to the joint estate, including separate property alongside the joint estate i.e. the wife's inheritance.
Marriages out of community of property with application of the accrual system
Each spouse is the owner of their own estate which means that they may own property independently of each other and are liable for their own debt.
Inheritances, legacies and donations, including assets acquired by virtue of them are excluded from accrual, unless the spouses agree otherwise in their antenuptial contract or if the testator or donor stipulate otherwise.
Marriages out of community of property excluding the accrual system
Each spouse is the owner of their own estate which means that they may own property independently of each other and are liable for their own debt. The difference lies in that when the marriage dissolves neither spouse has a claim against the other spouse, except for a possible maintenance claim.
By default a marriage is concluded IN Community of Property in the South African legal system. A couple about to get married will have to decide whether they would want to be married IN community of Property or OUT of community of property.
The only way to be married OUT of Community of Property, is to enter into a marital agreement, better known as an Antenuptial Contract (ANC), before the marriage is concluded. The Antenuptial Contract also has to be attested before an attorney who is a Notary prior to the marriage. The contract will then be registered in the applicable Deeds Registry Office.
Should a couple wish to enter into an Antenuptial Contract, there would be a further choice of whether the Accrual System is to be adopted or not. The accrual system can plainly be described as the ideal partnership for most relationships, giving you the benefit of separate estates but keeping the accrual of assets and debt from the date of marriage fair.