Contracts & Antenuptials
What is an Antenuptial Contract?
An antenuptial or prenuptial contract is a legal agreement drawn up between couples before they get married. It determines what happens to assets and liabilities in the event of death or divorce. Some people don’t like to think about an antenuptial contact (ANC) because they know that their marriage will last forever and they don’t want to dwell on the very unromantic suggestion of divorce or the very depressing prospect of death. They feel that categorising assets and liabilities into “yours”, “mine” and “ours” casts a pall over the joyous occasion. They might also feel that prenups are the domain of the rich and famous only, and that their assets are simple enough not to require legal delineation.
The truth of the matter is that antenuptial contracts are incredibly practical for all couples, no matter what their financial status, as they provide financial protection for each partner for the duration of the marriage and not just when the relationship ends.
I can draft an antenuptial contact that is uniquely tailored to your needs as a couple. I can also have your contract notarised and lodged with the proper authorities, saving you time and effort.
Getting married without an antenuptial contract
If you get married without an antenuptial or prenuptial contract in South Africa, your marriage is automatically in community of property. This means that what is “mine” is “ours” and what is “yours” is also “ours”. Effectively, there is only one estate and the couple share all of the assets - and all of the liabilities. So, you share the house, the car, the DVDs, the books and the lounge furniture, but you also share the shopping accounts, the overdraft and the credit card debt.
You are also so tightly bound to each other that you have no financial independence. This means you both have to agree and sign for each major financial transaction, from buying a car to opening an account.
Finally, the ties that bind, bind tightly even in death. In community of property estates are effectively frozen after one partner dies, while all the red tape is sorted out. This places a great deal of financial strain and uncertainty on the survivor.
Marriage in community of property may have been the default matrimonial system 50 years ago, but the world has changed significantly since then and now any half-way decent pre-marriage advisor will strongly recommend that couples consult a lawyer or attorney and get a prenuptial agreement before the wedding.
I can offer you an antenuptial contract as part of the wedding service, so you don’t have to go to the hassle and expense of hunting down prenuptial lawyers or attorneys.
Your antenuptial contract options
When you get married with an antenuptial contract, your marriage is out of community of property – you maintain two separate estates. So, what’s “yours” stays “yours” and what’s “mine” stays “mine”, legally-speaking.
There are two types of ANC contracts:
1. Antenuptial contract without accrual
An antenuptial contract without accrual ensures that assets acquired before and during the marriage remain with the separate estates. However, while you each retain complete financial independence and autonomy, you are legally obligated to offer financial support should your partner require it.
One of the biggest advantages of this kind of marriage contract is that you can’t be held liable for your partner’s debts and your partner can’t be held liable for yours.
This type of contract means that in the event of death, assets don’t pass automatically to your partner; you have to make specific provisions in your will. The upside is that in the event of your partner’s death, you can rely on your own assets and don’t have to wait for the estate to be settled before carrying on with your life.
2. Antenuptial contract with accrual
An antenuptial agreement with accrual is a nice compromise between “yours”, “mine” and “ours”. Basically, each partner comes into the marriage with a list of their own assets, which remain their own, and any assets that are accrued after the marriage are owned jointly. The contract makes allowances for specific exclusions, so you can still decide what you want to truly share and what you want to keep separate.
The great thing about marriage contracts with accrual is that you get the benefits of financial independence and accumulated shared wealth. They are also completely customisable, so they can be tailored to suit your needs as a unique couple.
The majority of pre-marital advisors recommend their clients get a prenup agreement with accrual.
A quick word on postnuptial agreements
You can change your marriage system if you don’t get a contract before your marriage and you later decide that you would, in fact, like to be married out of community of property rather than in community of property.
However, the process is not cheap. Nor is a postnuptial agreement as simple and straightforward as getting a prenup. For starters, a court needs to authorise your application for a postnuptial contract. This decision is based on whether or not any creditors will be adversely affected by the change. This means it’s not a quick solution if you or your partner runs into a lot of debt.
If authorisation is granted, a postnuptial contract can provide the same benefits and protections as an antenuptial agreement with accrual, with one important additional clause: existing creditors won’t be prejudiced by the contract.
A far easier, simpler and cheaper solution is to get a contract before your wedding.
"Contact me to find out more about how a prenup contract can benefit
you and your partner"