An antenuptial contract (commonly referred to as a prenuptial agreement (“prenup”) in other countries), is legal document which governs a married couple’s matrimonial property system. Accordingly, an antenuptial contract plays an important role in regulating the financial landscape of a marriage (during the marriage and at dissolution whether by death or divorce).
In South Africa, the Matrimonial Property Act 88 of 1984 (as amended) governs the different matrimonial property regimes, with the antenuptial contract being a key document for couples to determine their financial rights and responsibilities in the marriage.
What is an antenuptial contract?
An antenuptial contract is a legal agreement entered into by a couple before they get married, outlining how their assets and liabilities will be managed during the course of their marriage and in the event of divorce or death. It allows couples to tailor their financial arrangement to suit their individual needs and preferences.
The importance of an antenuptial contract:
- Protecting Individual Assets
An antenuptial contract allows individuals to safeguard their assets which they acquired prior to the marriage, inheritances, and businesses, ensuring that these remain their personal property in case of divorce or death.
- Debt Protection
It helps in defining the responsibility for debts incurred by either spouse before or during the marriage, preventing one partner from shouldering the burden of the other’s financial liabilities.
- Clarity in Financial Matters
By outlining the financial rules and expectations during marriage and potential dissolution, an antenuptial contract provides clarity, reducing the likelihood of disputes and misunderstandings.
When must an antenuptial contract be concluded?
An antenuptial contract must be signed by a couple before they get married (whether the marriage is civil or customary in nature).
Registration of an antenuptial contract:
All pages of an antenuptial contract must be initialled by the couple and a Notary must affix his/her seal of office on the last page of the antenuptial contact. An antenuptial contract must be registered at the Deeds Offices within 3 (three) months from the date on which it was signed or within such an extended period as the court may allow if the application is made.
If an antenuptial contract is not registered within the stipulated time, it will remain valid between the couple, however it will have no force or effect against third parties.
3 (Three) matrimonial property regimes in South Africa:
- In Community of Property:
- By default, if a couple does not sign an antenuptial contract, they are automatically married in community of property.
- In this regime, all assets and liabilities, whether acquired before or during the marriage, are shared equally between spouses.
- Both parties have equal control over the assets and are equally responsible for debts.
- Out of Community of Property with Accrual:
- Couples who wish to keep their assets and debts separate but want to share in the growth of their estates may choose the accrual system.
- The accrual system calculates the increase in the net value of each spouse’s estate from the date of marriage to the date of divorce or death.
- The spouse with the smaller accrual has a claim against the spouse with the larger accrual, usually resulting in a more equitable distribution of assets.
- Out of Community of Property without Accrual:
- This option allows couples to keep their finances entirely separate.
- Each spouse maintains ownership and control over their individual assets and is responsible for their personal debts.
- There is no sharing of assets or liabilities unless otherwise agreed upon in the antenuptial contract.
Conclusion
Choosing the right matrimonial property regime through a well-drafted antenuptial contract is a proactive step towards financial transparency, protection, and a more harmonious marital journey. Couples are encouraged to seek legal advice before entering into such agreements to ensure that their rights and interests are adequately protected.
Written by: Mohau Ketshegofaditswe Ledwaba
Disclaimer: this article is for general public information and use. It is not to be considered or construed as legal advice. Each matter must be dealt with on a case-by-case basis and you should consult an attorney before taking any action contemplated herein. Contact MK Ledwaba Attorneys to speak to an attorney.
Telephone: 010 226 9815
Email: mohau@mkledwaba.co.za
