The Antenuptial Contract
Agreeing to an antenuptial contact before getting married is the smart thing to do. Entering into marriage is a significant life event, and while emotions of love and dedication take centre stage, it's crucial to also think about the legal and financial consequences linked to a marriage that are governed by one’s matrimonial property regime. These are matters of finance, and not matters of the heart.
The decision to be married, rather than the decision to co-habit or date, comes with legal consequences: both rights and responsibilities. And, it’s critical to get the right advice before you get married (such as both parties seeking independent legal advice, if necessary), for there to be transparency and for both parties’ rights to be protected. Claire Thomson, head of the Family Law department at Witz Inc, often likens your antenuptial contract to the shareholders agreement of a business, and the financial aspects of a parties’ relationship as the “business end” of marriage.
Just as one would negotiate a shareholders agreement and seek advice to protect your rights when entering into a business venture with a business partner (be it a new or existing partner), so too would you do so when negotiating your antenuptial contract – whether you’ve shared resources prior to your marriage or not. And there are so many lessons to be learnt from that process.
If that feels like its counter-intuitive to the love and romance that is the foundation of marriage, Claire believes that it is important for couples to ensure a resilient relationship, by negotiating and learning a financial language with one another in the lead up to their nuptials.
Future Proof Your Marriage
So often, finances are the topic that we tend to shy away from. They sometimes reveal things about ourselves that feel uncomfortable to share with our loved ones. Think of your spending habits, or your saving habits. So often, because couples don’t talk about money, and their spending (and supporting) habits, it can put a marriage at risk of the trust (and then love) breaking down.
Claire firmly believes that in order to “future proof” your marriage, you need to develop a shared language, and financial resilience, and what better place to start that, than the discussion about your antenuptial contract.
According to the Matrimonial Property Act 88 of 1984, there are three types of marital regimes in South Africa:
- Marriage in community of property: This is the default marriage regime where all assets and liabilities of both spouses are merged into one joint estate. Should the marriage end by way of divorce or death, assets are divided equally between the spouses.
- Marriage out of community of property: A marriage out of community of property can be concluded with or without the accrual system. What is synonymous with both options, is that during the marriage, the assets and liabilities of the spouses remain separate.
- with express exclusion of accrual: In this regime, there is no currently sharing whatsoever of assets and liabilities between the spouses. (It’s important to bear in mind that this matrimonial property regime is currently the subject of a judgment before the Supreme Court of Appeal – yet another reason why seeking expert legal advice is imperative)
- with accrual: When applying the accrual system, at termination of the marriage (by death or divorce) the spouse who has shown more growth (accrual) than the other must share that growth with their spouse who has shown less during the marriage. This is done by way of a special calculation, which will be discussed with you during your intake consultation.
What is the difference between out of community of property (with accrual) and out of community (without accrual)?
Many people believe that the accrual system presents a hybrid of both in, and out of community of property. But it’s really important to remember that this is not the case.
At Witz, our expert family law practitioners spend considerable time consulting with you to ensure that you get the very best advice possible when making a decision about what’s best for you in terms of your antenuptial contract.
If you want to be married out of community of property (with or without accrual), its fundamental that before the marriage register is signed (in the case of a civil marriage or a civil union), or before a traditional or customary marriage is contemplated or negotiated that the parties negotiate and agree on the terms of their antenuptial contract, and sign the contract before a notary public.
For those couples for whom the beginning of their marriage journey starts with the negotiation of lobola, it is imperative that before lobola is negotiated, that your antenuptial contract is discussed and agreed upon, and signed. The consequence of waiting can result in your marriage being deemed in community of property (which may not be what you want). Waiting for the wedding ceremony, or to sign your antenuptial contract before singing the marriage register with Home Affairs is often too late.
An antenuptial contract (often known as a "prenup" as we hear on tv programs) is a legal agreement that couples agree to before they get married. Its purpose is to address the financial rights of each spouse in the event of divorce or the death of one spouse.
An antenuptial contract must be drafted by an attorney and signed by both parties before a notary public before the marriage takes place. Once concluded, the Agreement must be registered at the Deeds Office within 3 months from date of signature. If an antenuptial contract is negotiated and signed, but the marriage is not concluded, the agreement does not become binding upon the parties to the agreement. The agreement is conditional upon a marriage being entered into. If a couple wishes to marry with an antenuptial contract, these steps must be followed in order to ensure the agreement's validity.
It's important to note that laws and regulations can vary over time so it's recommended to consult with a family law expert for the most accurate and recent information regarding an Antenuptial Agreement in South Africa.
Contact the Witz Family Law Department today and let us attend to your antenuptial contract and put your mind at ease.