FAQ’s

Here are some common reasons why people choose to enter into an antenuptial contract:

1. Protecting Separate Assets: If you or your partner have significant assets, investments, or property before the marriage, an antenuptial contract can help protect these assets from being subject to division in the event of a divorce. This is particularly important if you want to maintain ownership of specific assets.
2. Debt Protection: If one or both partners have substantial debts before the marriage, an antenuptial contract can outline how these debts will be managed and potentially limit the other partner's liability for them in the event of divorce.
3. Preserving Family Inheritance: Antenuptial contracts can be used to safeguard family inheritances. If you expect to receive an inheritance during your marriage, an antenuptial contract can ensure that these assets remain separate and are not divided in a divorce.
4. Business Interests: If you or your spouse own a business, an antenuptial contract can outline how the business interests will be handled in the event of divorce or death. This can help protect the business from being divided or sold off.
5. Reducing Legal Costs: In the event of divorce, having an antenuptial contract  in place can streamline the legal process and potentially reduce the time and expenses associated with divorce proceedings. This can be especially beneficial in uncontested or amicable divorce situations.
6. Clarity and Peace of Mind: An antenuptial contract can provide clarity and peace of mind to both partners, knowing that they have a clear plan in place for handling financial matters in case the marriage does not work out. This can contribute to a more secure and stable relationship.
7. Estate Planning: For individuals with complex estate planning needs, an antenuptial contract can be a valuable tool for ensuring that their estate plan is carried out as intended, particularly in cases of blended families.

You need to enter into an antenuptial contract BEFORE you get married.

If you are entering into a customary marriage, then you need to enter into the antenuptial contract BEFORE you start the Lobola negotiations.

If you do not enter into an Antenuptial Contract BEFORE you get married, then you are automatically married in community of property. This means that ALL assets and liabilities of  the spouses, whether acquired before or during the marriage, falls within one joint estate.

4.1       Disadvantages of being married in community of property

4.1.1    If one spouse goes into debt, both spouses are ultimately responsible for the debt and creditors have claim  against both spouses.

4.1.2    If one of you has your own business and becomes insolvent, your home and all assets, in both of your names, can be attached by creditors and both spouses will be declared insolvent.

4.1.3. If one spouse needs to go under debt rescue, both spouses are placed under debt rescue.

4.1.4 There is no financial independence, certain transactions, such as purchase of immovable property will need the consent of both spouses.

4.1.5 If a surety is needed for business purposes, your spouse will also need to sign the surety.

4.1.6 If one spouse should die, the estate of both the deceased and surviving spouse is wound up because it is a joint estate. This may make things very difficult for the surviving spouse who may not be able to deal with certain aspects of their own estate until the entire estate is finalised which could take some time to finalise.

 4.2 Advantages of a marriage in community of property

4.2.1    On death or divorce, the estate is divided equally.

Marriage out of community of property means that each party has, and maintains, a completely separate estate.

Each spouse retains absolute independence of contractual capacity and does not need the consent of their spouse to conclude certain agreements.

Each spouse’s assets are protected against claims by the other spouse’s creditors.

Each  spouse is liable for his or her own debt.

There is no provision for sharing in each other’s estates.

In this type of marriage, the spouses will never ever share in each other’s estate. Spouses can make donations to each other or leave their estates or part of their estates to each other in their wills.

 6.1.1  Advantages of being married out of community of property without  the accrual system:

6.1.1.1 If one of the spouses becomes insolvent, creditors may not attach the assets of the other spouse.

6.1.1.2 Each spouse is legally obliged to offer financial support to one another should one of the spouses be unable to support himself/herself.

6.1.2    Disadvantages of being married out of community of property without the accrual system:

6.1.2.1         In the case of death or divorce, spouses are entitled only to those assets that they have accrued in their name – should one of the spouses choose to stay at home to raise children, that spouse would not be entitled to the assets accumulated by the other spouse.

6.1.3    Normally this type of marriage is recommended when both spouses have already accumulated a sizeable estate and will not be contributing to the growth in the other spouses estate during the marriage.

What this means is that the spouses share in each other’s increases or decreases in their estates. Most couples find that this is the fairest marriage system especially if the couple is just starting out and will each in some way contribute towards the growth in the other’s estate.

Each spouse can then retain the assets they owned before the marriage and exclude either the asset or the value of the asset in the Antenuptial Contract or the spouses can decide to exclude any assets or to start the value of their estate on a NIL Value.

The spouses will share the assets during the course of their marriage based on a particular calculation if the marriage ends in death or divorce.

The term “accrual” describes the net increase in the value of a spouse’s estate since the date of the marriage. Put differently, what was  a spouses assets prior to the marriage remains that spouses assets if excluded in the Antenuptial Contract, and what the spouses have earned in the duration of marriage is shared between the spouses.

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.

7.1.   How is the accrual calculated?

At dissolution of the marriage, each spouse’s estate is calculated by determining all assets, determining all liabilities, subtracting liabilities from assets and arriving at a nett asset value.

Simply put, the value of the smaller estate is subtracted from the value of the larger estate. The difference is split, and the party having the larger estate pays half of the difference between the two estates to the party with the smaller estate. This will then mean that each party has the same value of estate upon death or divorce.

It is possible to provide for exclusions from this sharing. In the Antenuptial Contract the parties may exclude certain assets from the sharing. For an asset to be excluded it must be properly described.

7.2 Advantages of being married out of community of property with the accrual system:

7.2.1           Both parties share in the wealth accumulated during marriage.

7.2.2           Any property owned property before the marriage, remains in the respective spouse’s names and can be excluded from the accrual calculation in the Antenuptial Contract.

7.2.3        Each spouse conducts their own independent financial affairs.

7.2.4         If one spouse goes into debt, it cannot be claimed from the estate of the other.

7.2.5        In the case of divorce, any assets made whilst married are shared – it doesn’t matter who acquired them; each partner’s current nett asset value is calculated by subtracting all liabilities from assets.

7.2.6        The Antenuptial Contract can be tailored to suit your specific needs.

7.2.7          It protects the partner who remains at home to care for the family.

In general, an antenuptial contract is an agreement between two parties getting married and thus they can include any provision in the antenuptial contract, as long as it is not against nature, reason, morality, public policy or prohibited by law. .

However in terms of South African Law, some clauses may not be included in an antenuptial contract. If they are included, the law will not take those clauses into account.

Clauses  which may not be included in the antenuptial contract:

• An undertaking by a spouse to adopt or convert to the religion/faith of the other Spouse.
• A clause stating that marital disputes will be referred to arbitration.
• A clause recreating or retaining the husband’s marital power.
• A clause stating that the parties will not live together after their marriage.
• A clause that allows  the parties to commit adultery.
• A clause stating that the wife shall stop working and become a housewife on a permanent basis from the birth of their first child.
• A clause stating that the one spouse shall not have the power to bind the other spouse for household necessaties.
• A clause stating that neither spouse shall have the right to ask an order of forfeiture to share in the accrual of the other’s estate on  divorce.

An antenuptial contract takes about 7- 10 days to register in the deed's office.

You do not however have to wait for the antenuptial contract to be registered in the deeds office to get  married- once you have signed the antenuptial contract, the Notary Public, will provide you with a letter confirming that you have entered into an antenuptial contract.

An antenuptial contract can be amended at any stage BEFORE marriage.

Thereafter, the antenuptial contract can only be rectified with the consent of the High Court.

A party can only enter into an antenuptial contract after getting married with the permission of the High Court.

This is called a postnuptial contract. The parties have to bring an application to the High Court and provide good reasons why the antenuptial contract was not entered into before marriage.

This is quite a costly application.