Antenuptial Contracts – Yes or no?
25 Oct 2017
When it comes to Antenuptial Contracts (“ANC’s”) in South Africa, I am of the firm view that this document may be the most important document that you will sign in your life, besides your last Will and Testament.
In my practice, the most frequently asked question is “What is an ANC and what are the implications of me entering into this type of contract in South Africa?”
Due to the frequency of this question being asked I have taken the opportunity to address this issue by writing this short article, which will deal with the basics of an ANC. In essence, this document is a contract which is entered into between the future spouses and it fundamentally regulates the following aspects:
- It allows the spouses to exclude any and all assets that they have ownership over before they enter a marriage;
- Determine a commencement value i.e what your estate is worth at the inception of the marriage;
- How the parties’ estate is to be divided and calculated upon divorce (taking into account whether there is an accrual claim or not);
- How they will need to transact with third parties upon divorce; and
- How their assets will be distributed, not only on divorce, but also on death.
From the above, it is evident that an ANC is a crucial document that, under South African law, determines whether your marriage will exist in one of the following marriage regimes:
- In Community of Property – this is when the parties do not enter into an ANC prior to their marriage and, as a consequence of this, all their assets and liabilities are equally shared and jointly owned by both parties. Essentially, there is only one estate between them. This type of regime has a variety of implications.
- Out of Community of Property – with the application of the accrual system – this is where each spouse declares his/her estates nominal value at the commencement of the marriage. They will retain their assets and liabilities (unless expressly excluded) until death or divorce, whereupon the accrual of each of their assets and liabilities will be calculated and divided.
- Out of Community of Property – with no accrual system – this, principally means “what is yours, is yours, what is mine, is mine – before and after the marriage”. Although the financially weaker spouse will not be able to claim any assets from the estate of the other, there will always be a potential spousal maintenance claim, which is usually based on the circumstances of the financially weaker spouse.
In terms of ANC’s these contracts can be somewhat complex. It is therefore essential that the Attorney or Notary who is drafting the contract for you and your spouse explain all the implications of each regime, as well as how these will be regulated.
An ANC is a contract, and ultimately each party needs to be aware of the implications and what it means to sign these type of contracts. At the end of the day, there needs to be a meeting of the minds for it to be deemed a valid contract between both parties.
For any queries relating to the drafting of any of the above contracts, please contact Jennifer Stoler (Associate and Notary) at Schindlers Attorneys – [email protected](This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)