Antenuptial Contracts Explained
Louwrens Koen – Practicing Attorney, Conveyancer and Notary South-Africa
What is an Antenuptial Contract?
- Antenuptial (Prenuptial, Prenup, Marriage Contract) agreement is a written agreement (contract) between two people who are about to marry, setting out the terms of possession of assets, treatment of future earnings, control of the property of each, and potential division if the marriage is later dissolved or when one of the parties dies.
Why consider the registration of an Antenuptial Contract
There are various reasons why some people prefer to enter into an Antenuptial Contract in order to be married out of community of property. The most common reasons are:
- They do not want to be held liable for any debts that the other spouse may have incurred prior to the marriage;
• They do not want to be held liable for any debts that the other spouse may incur during the marriage;
• They want to protect assets such as a house from creditors, particularly if one of the spouses has a business of his or her own, and they would therefore want to be able to register the house in the name of the other spouse;
• One or both spouses have assets at the time of the marriage that they don't want to become part of a joint estate;
• They want to be able to enter into transactions without having to obtain the consent of the other spouse;
• During the marriage each spouse retains control of his or her own property, builds up his or her own estate and each is responsible for his or her own debts.
• 1/3 of all South-African Marriages end in the first few years of Marriage.
• Contested Divorce can cost anything from R15000-R500000 and may take years to complete.
• The risk of Sequestrations, Liquidations, Execution sales, Debt, Business Failure, Fraud and Theft etc. is a reality of doing business in South-Africa
• 100% of us will eventually die. If married in community of property the whole of the estate (both parties estate) is frozen. It can take a long time to finalise a deceased estate.
Parties want the freedom to trade.
Common misconceptions about Antenuptial Contracts
- Antenuptial Contracts are only for the rich
• We in any case do not own much
• We can always do it later
• Our parents didn't do it
• Antenuptial agreements are unfair
• Antenuptial Agreements are too personal
• Antenuptial Agreements are unromantic
• We will never divorce
• If we divorce I am sure it will be amicable
You have 3marital regime choices how to get married
- Marriage in Community of Property (No Contract)
- Marriage Out of Community of Property without the Accrual System
- Marriage Out of Community of Property with the Accrual System (Most Popular)
Marriage in Community of Property. (Marrying without an Antenuptial Contract)
Everything which is mine is yours, and everything which is yours is mine. This may sound lovely and more in line with the spirit in which you enter marriage, but take a step back and look at the risks and implications in a modern world.
The benefit of Marriage in Community of Property:
On death or divorce, the estate is divided equally.
Risks and Disadvantages to Marriage in Community of Property
- If one of you goes into debt, creditors have a claim to all of your assets – that’s your assets as well the assets of your spouse
• If one of you has his/her own business and becomes insolvent your home and all assets, in both of your names, becomes attachable by Creditors
• There is no financial or even contractual independence, certain transactions, such as the sale of shares, need the consent of both parties
• If one partner should die, the estate of both the deceased and surviving partner will be wound up because it is a joint estate – not great for the surviving partner who will find themselves in legal limbo possibly without access to funds in addition to the trauma of losing a loved one.
Marriage out of Community of Property with the Accrual system Excluded
The Parties enter into an Antenuptial Contract and excludes the Accrual System.
- Assets acquired before or during the marriage remain separate throughout the course of the marriage. Assets are not shared and each partner has a separate estate. In short, what's yours stays yours and what's mine stays mine.
Advantages of a Marriage Out of Community of Property With the Accrual Excluded
- If one of the parties becomes insolvent, creditors may not attach the assets of the other
• Each of the parties is still legally obliged to offer financial support to one another should one of you be unable to support himself/herself.
• Full contractual freedom
• In second marriages, marriages where the parties already have children, where both parties have already amassed a sizeable estate or in so-called marriages of convenience it simplifies matters drastically.
Disadvantages of a Marriage Out of Community of Property with the Accrual System Excluded
- In the case of death or divorce, you are entitled only to those assets you have accrued in your own name. Should one of you choose to stay at home to raise children, that partner would not be entitled to the assets accumulated by the other partner.
Marriage Out Of Community of Property with the Accrual System
- Each partner states the value of their respective assets (net asset value) at the beginning of marriage. Thereafter any assets are shared 50/50. One can state that specific assets be excluded from the accrual system, such a property or shares etc.
• In many ways the safest and fairest marriage regime.
Advantages of Marriage Out Of Community of Property with the application of the Accrual System
- Both parties share in the wealth accumulated during the marriage
•If each of you owned property before the marriage, it remains in your respective names
• Each party has complete financial and contractual freedom.
• If one party incurs debt or liability, it cannot be claimed from the estate of the other party.
• In the case of divorce, any assets accrued whilst married are shared – it doesn’t matter who acquired them; each partner’s current net asset value is calculated by subtracting all liabilities from assets
• The antenuptial contract can be tailored to suit your needs
•It protects the partner who remains at home to care for the family
What is the Accrual System and how is it calculated
- The 'accrual' is the extent to which the respective spouses have become richer by the end of the marriage, in other words, the amount by which the spouses' joint wealth has increased over the period of the marriage. The spouse with the smaller accrual has a claim against the one with the greater accrual for half of the difference between the two amounts.
Assets Excluded from Accrual Calculation
- Various assets are excluded from the determination of the accrual of a spouse's estate, and they are: Any amount which accrued to the estate by way of damages other than damages for patrimonial loss;
• Any asset which has been expressly excluded from the accrual system in terms of the antenuptial contract of the spouses as well as any other asset which a spouse has acquired by virtue of his or her possession or former possession of such asset;
• An inheritance, a legacy or a donation which accrues to a spouse during the subsistence of his or her marriage as well as any other asset which he or she acquired by virtue of his or her possession or former possession of such inheritance, legacy or donation, except insofar as the spouses may agree otherwise in their antenuptial contract or insofar as the testator/testatrix or donor may stipulate otherwise;
• Donations between spouses other than a donation mortis causa (after death).
What other legal issues should be addressed or considered before getting married?
- Last Will and Testament-Get one or amend the existing one.
• Estate Planning-
• Consider the registration of a Family Trust.
We register antenuptial contracts for an all-inclusive fee of R1450.00
How to get started
Click Here to complete an online application form. We will then send you a pro forma contract within one working day with the process to be followed to complete the process. After receipt of a signed Power of Attorney, we will supply you with a certificate to be handed to the marriage officer. Registration in the office of the Registrar of Deeds takes place within 10 working days. It takes up to 12 weeks for us to receive the registered original contract from the Registrar of Deeds. Remember that we must receive a signed Power of Attorney before the marriage of the parties.
Please contact us regarding any questions you might have or if necessary to book a consultation.