By signing an antenuptial contract, you enter an agreement before your marriage, stipulating the terms and conditions for the exclusion of community of property between you for the duration of your marriage.
Why do we need an antenuptial contract?
Parties who do not enter into an antenuptial contract before their marriage are married in community of property.
In South Africa, three possible marital systems can apply to your marriage, namely:
- In community of property;
- Out of community of property; and
- Out of community of property with accrual.
What does it mean to be married in community of property?
If you do not sign an antenuptial contract (ANC) before your marriage, it is automatically in community of property. It means that the assets and liabilities of each spouse become one joint estate and spouses are jointly liable for each other’s debts.
If you have a joint estate, it means that if one spouse gets sequestrated, the other spouse is automatically also sequestrated. Or if the Sheriff sells your property in execution due to the debt of one spouse, he automatically sells the property of the other spouse as well.
What does it mean to be married out of community of property?
To be married out of community of property, you need to enter into an ANC before the marriage.
There are two ways to get married out of community of property:
1. Without the accrual
If you sign an ANC without accrual, the spouses are financially independent of each other. They do not share in each other’s profit or loss.
In short, what belonged to each spouse before the marriage, and what he/she acquires during the marriage, remains his/her exclusive estate.
2. With the accrual
Here, spouses are financially independent of each other. If the marriage should dissolve through death or divorce, the spouse whose estate grew the least is entitled to share in the accrual of the estate of the other spouse.
To calculate the accrual, each spouse stipulates a starting net asset value in the ANC. On dissolution of the marriage, it is deducted from the end net asset value. The spouse with the higher accrual must pay the other 50% of the difference between the accruals.
Spouses can stipulate assets that are to be specifically excluded from the accrual of his/her estate, such as pension or shares in a business.
Frequently Asked Questions
What is an antenuptial contract?
An Antenuptial contract (ANC) is an agreement entered into between two parties before their marriage. If you do not enter into an ANC contract before your wedding, you are automatically married in Community of Property.
By entering into the ANC, the parties agree to exclude the system of Community of Property from their marriage (profit and loss). There are two types of Antenuptial contracts, those including Accrual and those excluding Accrual.
During the marriage, each spouse will retain his or her separate property and remain financially independent.
What are the benefits of an antenuptial contract?
- If either party is declared insolvent, the other spouse is protected from the insolvent spouse’s creditors;
- Spouses will not be held liable for any debt that the other spouse might have incurred prior to the marriage;
- Spouses will not be held liable for any debt that the other spouse may incur during the marriage;
- Specified assets that the spouses do not want to form part of a joint estate can be excluded;
- Spouses do not need to obtain each other’s consent when dealing with their own property.
- Allow for the protection of assets from creditors;
- Each spouse can retain his/her individual financial identity.
How does one conclude an antenuptial contract?
Arrange a consultation with the Notary (an attorney with the additional qualification of a Notary Public) before the marriage. The Notary will draft the Antenuptial following the instructions obtained at the consultation and will then arrange for the parties to attend at his/her office to sign the Antenuptial in his/her presence.
The original ANC is sent to the Deeds Office for registration and must be registered within three months of the date of the marriage.