ANTENUPTIAL CONTRACTS - YES OR NO?

ANTENUPTIAL CONTRACTS - YES OR NO?

When it comes to Antenuptial Contracts in South Africa, we are of the firm view that this document may be the most important document that you will sign in your life.

In our practice, the most frequently asked question is,” What is the Antenuptial Contract?” and “what are the implications for spouses entering into those type of contracts in South Africa?”.

In essence, this document is a contract which is entered into between the future spouses, and it fundamentally regulates the following aspects:

1. How their assets will be distributed, not only on divorce, but also on death.

2. Allows the spouses to exclude any and all assets that they have ownership over before  they enter a marriage.

3. Determine a commencement value, for example: What your estate is worth at the inception of the marriage.

From the above, it is evident that an Antenuptial Contract is a crucial document that, under South African Law, determines whether your marriage will exist in one of the following marriage regimes:

1. Out of Community of Property - with the application of the accrual system.

This is where the spouses retain their respective assets and liabilities (unless expressly excluded) until death or divorce, where a formula will be used to calculate how much the spouse with the larger estate must pay the spouse with the smaller estate. Only the property/assets acquired during the substinence of the marriage are considered when calculating the accrual of each party’ estate. Upon your death, your estate will first be dealt with in terms of the marriage regime applicable, and then the provisions of your Will, shall be considered.

2. Out of Community of Property - with no accrual system.

This means that “What is yours, is yours, what is mine, is mine - before and after the marriage”.

3. In community of Property.

This is when the parties do not enter into an Antenuptial Contract prior to their marriage and, as a consequence of this, all their liabilities and assets are equally shared and jointly owned by both parties.

It is essential that an Attorney assists you as these contracts can be somewhat complex. That is the reason why, when you come for consultation at our offices, we explain to you all the implications of each regime, as well as how these will be regulated. We also explain what implications you need to be aware of 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 to be a valid contract between both parties.

For any queries relating to the drafting of any of the above contracts, please do not hesitate to contact Duvenage Attorneys and we will gladly assist you.