What is An Antenuptial Contract?
Even though it might not be the most romantic subject, before you get married, it is essential to think about a few legalities. One such decision is whether to get married in community or out of community of property and whether you will be including or excluding accrual. Here is a helpful guide on what you need to know:
South African Marriage Law
You are automatically married in community of property in terms of South African Law if you did not sign an Antenuptial Contract prior to your marriage. “In community of property” means that all assets and debts before marriage are put together in a joint estate. Everything the couple has ever earned or spent and earns or spends after their marriage will also form part of this joint estate. This includes any debt and liabilities incurred by either one of parties.
One of the most difficult things that could happen to a couple who get married in community of property is if one party declares insolvency. Both parties will be declared insolvent since they have a communal estate.
In order to marry out of community of property in South Africa, both parties must sign an antenuptial agreement in the presence of a public notary prior to their marriage.
Pros of Getting Married In Community of Property:
- You don’t need any additional contracts before being able to tie the knot.
- If you are financially weaker than your spouse you can share in their assets.
Cons of Getting Married In Community of Property:
- If you are financially stronger than your spouse you have to share your assets.
- The joint administration of an estate can get complicated.
- You are jointly liable for each other’s debt’s which can become quite difficult in cases of insolvency.
- If there is friction in a marriage, it can become hard to obtain consent from the other party.
DID YOU KNOW?: Prenuptial agreements, antenuptial agreements, and premarital agreements are basically different names for the same type of agreement. Most commonly it is referred to as a Prenup.
What is an Antenuptial Contract?
An Antenuptial Contract (ANC) is a contract entered into by two people before their marriage. This will stipulate the terms and conditions for the exclusion of community of property between them. This is also known as being married “out of community of property.” Each spouse usually retains their separate property and have complete freedom to deal with that property as they choose. If one spouse was declared insolvent, the other’s property is protected from the insolvent spouse’s creditors.
The ANC must be registered in the Governmental Deeds Office within three months from the date of signature of the contract. You can find a list of Deeds Offices online, on (www.dla.gov.za).
Out of Community of Property with Accrual
Another option is to get married out of community of property with accrual. The majority of couples soon to be wed find that this is the fairest marriage system. Hereby, each spouse retains ownership of their estates before the marriage but shares the accrued wealth acquired during the marriage. The accrual system does not apply automatically to all marriages out of community of property. For the accrual system to apply, the ANC must be drafted in a specific way. The accrual system incorporates a calculation that is applied when the marriage is dissolved by divorce. The spouses will share the assets during the course of their marriage based on a particular calculation if the marriage is terminated.
The term ‘accrual’ is used to denote the net increase in the value of a spouse’s estate since the date of marriage. In other words, what was yours before the marriage remains yours, and what you have earned during the marriage belongs to both of you.
Determine the each estate’s accrual as follows:
- Draft a list of all the assets, such as immovable property, furniture, vehicles, pension interest, annuities, policies, investments, bank accounts and interests such as shares and loan accounts in companies/partnerships/trusts or any other form of business, etc. obtained during the marriage at the present day values.
- Deduct the assets that were excluded in the ANC, as well as any other assets acquired by virtue of the possession, or former possession, of the excluded assets.
- Minus inheritances, legacies or donations, as well as any other asset acquired by virtue of the possession, or former possession, of the inheritances, legacies or donations.
- Deduct any debts and liabilities.
- Deduct the commencement value, as stated in the ANC and adjusted by CPI.
- The net result will be the accrual in the estate.
The initial value of a spouse’s estate must be declared either in the ANC or a separate statement made not later than six months after the marriage, failing which the initial value will be deemed to be nil.
Pros of Getting Married Out of Community of Property with Accrual:
- The spouses share the increase in their assets accumulated during the marriage and the economically weaker spouse will benefit.
- The spouses do not share their assets acquired before their marriage (but only if excluded in the ANC or included in the commencement values of the parties’ estates). The accrual system appeals to people who are already wealthy at the time of marriage.
- During the course of the marriage, each spouse manages his/her estate at will. There is no complex joint or equal administration.
- The spouses are not liable for each other’s debts. All that they share is their net assets. Thus, if one spouse becomes insolvent, the other spouse is protected against creditors.
Cons of Getting Married Out of Community of Property with Accrual:
- The economically stronger spouse has to share the profits that he/she made during the marriage.
- One has to enter into an ANC in order for the accrual system to apply.
- The calculation of accrual at the end of the marriage can be a bit complex.
Out of Community of Property excluding Accrual
A marriage out of community of property is achieved by drawing up an antenuptial contract (ANC). The ANC will be the most important contract that a married couple will sign in their lifetime. Entered into before marriage, the purpose of the contract is to change the automatic financial consequences of marriage.
With this system, each of the parties involved in the marriage will remain individual. This means that the assets and liabilities the parties had individually before the marriage form part of their separate estates. The assets and liabilities that the parties acquired during the course of their marriage will also remain separate. In such an agreement if the parties divorce, each party will attain their own individual assets and liabilities. There can also be no claim for a transfer of assets. Spouses who are married out of community of property have separate estates and are not liable for each other’s debts.
Pros of Getting Married Out of Community of Property without Accrual:
- Each party will keep their individual assets and liabilities separate and can handle it however he/she likes.
- Spouses are not liable for each other’s debts, thus if one spouse becomes insolvent creditors cannot make a claim against the solvent spouse with regards to their assets.
- The financially and/or economically stronger spouse is not legally obligated to share his/her assets with the financially and/or economically weaker spouse. This is subject to judicial discretion and forfeiture of benefits.
Cons of Getting Married Out of Community of Property without Accrual:
- The economically and/or financially weaker spouse does not get to share in the estate of the economically and/or financially stronger spouse even if the other party indirectly contributed.
- An ANC has to be entered into prior to marriage which incurred additional fees such as notary costs and registration costs.
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