Sascha was registered as a Notary Public in 2006. With 13 years’ experience she can provide the necessary advice to assist you in deciding which marital regime should apply to your marriage and draw up the necessary contract.
What are antenuptial contracts and why are they necessary?
An antenuptial contract is an agreement entered into between two parties prior to their marriage stipulating the terms and conditions for the exclusion of community of property between them for the duration of their marriage.
Parties who fail to enter into an antenuptial contract before their marriage are married in community of property.
In South Africa there are three possible marital systems that 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 no antenuptial (A.N.C) is entered into prior to the marriage then the marriage is automatically one which is in community of property. This means that the assets and liabilities of each spouse become one joint estate and spouses are jointly liable for each other’s debts.
To have one joint estate 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?
In order to be married out of community of property parties need to enter into an A.N.C prior to the date of the marriage.
There are two ways to get married out of community of property:
1. Without the accrual
Signing an A.N.C without the accrual has the effect that the spouses are financially independent from each other. They do not share in each other’s profit or loss. What belonged to each spouse prior to the marriage and what he/she acquires during the marriage remains his/her exclusive estate.
2. With the accrual
Here, spouses are financially independent from each other. However, at the dissolution of the marriage 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.
In order to calculate the accrual, each spouse needs to stipulate a starting net asset value in the A.N.C and 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 (A.N.C) is an agreement entered into between two parties prior to their marriage. If you do not enter into an A.N.C contract prior to your marriage, you are automatically married in Community of Property.
By entering into the A.N.C 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 is able to retain his/her individual financial identity.
How does one conclude an antenuptial contract?
A consultation should be arranged with the Notary (an attorney with the additional qualification of a Notary Public) prior to the marriage. The Notary will then draft the Antenuptial in accordance with 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 A.N.C is sent to the Deeds Office for registration and must be registered within 3 months of the date of the marriage.
Fee: What does it cost?