An antenuptial contract (ANC) is an agreement entered into between two parties prior to their marriage.
There are two forms of antenuptial contracts, those including the accrual and those excluding the accrual. Section 4(1)(a) of the Matrimonial Property Act 88 of 1984 provides that, the accrual of the estate of a spouse is the amount by which the net value of the spouse’s estate at the dissolution of the marriage exceeds the net value of the spouse’s estate at the commencement of that marriage.
In ANC’s excluding accrual, spouses keep what is theirs before their marriage and also keep what they have accumulated after their marriage. If the ANC includes the accrual system, each spouse will retain their property before the marriage and share the growth of each other’s estates during the marriage.
Accrual takes effect when the marriage ends either due to death or divorce. The spouse whose estate shows the smaller accrual has a claim for half of the difference between the accruals of both spouses’ estates against the estate of the spouse showing the greater accrual.
The benefits of an ANC are as follows:
- If either spouse is declared insolvent, the other spouse is protected from the insolvent spouse’s creditors;
- Spouses will not be held liable for any debt that the other spouse may have incurred prior to the marriage;
- Spouses will not be held liable for any debt that the other spouse may incur during the marriage;
- Assets that the spouses do not want to form part of a joint estate can be specifically excluded;
- Spouses do not need to obtain each other’s consent when dealing with their own assets; and
- Should either spouse undertake a business venture, the other spouse will be protected from creditors.
Once you have decided which marital regime is best suited for you, you will need to sign the ANC in the presence of a notary public and two witnesses prior to the date of your marriage. The original ANC is sent to the Deeds Office and is registered. The ANC must be registered in the Deeds Office within 3 months of the date of executing of the ANC. If the ANC is not registered within 3 months, the spouses will be deemed to be married in community of property.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)