Anti-nuptial Contract

 

Different marital regimes in South Africa:

  1. In Community of Property, is the default position when couples get married without concluding an ante-nuptial agreement beforehand. The assets and liabilities of both parties before marrying as well as those obtained during the course of the marriage, are merged into one estate after the conclusion of the marriage. If you do not enter into an ante-nuptial contract before the conclusion of the marriage, you will automatically be married in community of property. The risk related to this regime is that both spouses become vulnerable to the financial decisions made by and claims against their significant other. 
  2. Out of Community of Property, including the accrual system, refers to when couples get married after the conclusion of an ante-nuptial contract, which does not specifically exclude the accrual. This regime essentially means that the parties will retain their own assets, which was they’re prior to the conclusion of the marriage. The accrual will only take effect upon dissolution of the marriage. Upon dissolution of the marriage, the net value of the estates is calculated separately, and the smaller estate will be compensated with half of the difference between the larger and the smaller estate. The benefit of this regime is that the creditors of your spouse will not be able to pursue you personally for their debts; both parties share in the wealth accumulated during marriage, and each party is free to conduct his/her own independent financial affairs. 
  3. Out of Community of Property excluding the accrual system, when marrying out of community of property without the accrual system, the parties will never be able to share in each other’s assets, and they will never be held liable for each other’s liabilities. It should be noted that the accrual should be specifically excluded when the ante-nuptial contract is concluded, and the benefits related to this regime is that each party will have full contractual and financial freedom of autonomy as well as no liability in respect of the other’s creditors.

 

What is an ante-nuptial contract: 

It is an agreement concluded between two individuals who intend to get married, which will govern the rights and obligations related to the individual estates of each party should the marriage is terminated by either divorce or death. 

 

Process of registering an ante-nuptial contract: 

The ante-nuptial contract must be signed in front of Notary Public by the individuals who intend to marry prior to the conclusion of the marriage. Should the individuals not enter into an ante-nuptial contract before entering into the marriage, the individuals will have to bring an Application in the High Court, which will lead to extensive legal costs. 

The contract will then be registered in the Deeds Office, which can take place after the marriage, but the contract must be signed before the marriage. 

 

The importance and benefits of an ante-nuptial contract: 

– The spouses’ assets will be protected from creditors during the marriage due to the fact that each spouse will retain their own separate estate. If one spouse is declared insolvent, the other spouse will be protected from the insolvent spouse’s creditors. 

– The ante-nuptial contract can be drafted in order to cater for each individuals’ unique circumstances. 

– Spouses will not be held liable for debt which the other spouse incurred before and during the conclusion of the marriage. 

– Spouses will not have to obtain each other’s consent when dealing with their own property. 

– Spouses retain their own financial identity. 

 

Importance of a testament: 

– A Will formalises your wishes and ensures that your assets and personal possessions are bequeathed to your selected beneficiaries. 

– Where you do not have a valid Will, your estate will be divided according to the laws of intestate succession, which does not guarantee that your wishes will be realised upon death. 

– In your Will, you also select who will deal with your affairs and assets once you are no longer here through the appointment of an executor. 

– A Will is also used to leave more personal instructions such as how you want to be laid to rest, who receives and takes care of your pests or other personal and confidential disclosures of information which your family might require.