This is the area of entering into a marriage in which most people feel a range of uncomfortable – some a little and others extremely. It feels a little distasteful to draw up a contract in case of divorce when you haven’t even walked down the aisle, but the reality is that it isn’t only divorce for which the contract has implications. It affects your married life as well.
Marrying without an Antenuptial Contract = Married in community of property
If you don’t draw up an antenuptial agreement in South Africa then your marriage automatically defaults to ‘in community of property, and the state assumes that all assets and liabilities will be shared – ‘everything which is mine is yours, and everything which is yours is mine’. This may sound lovely and more in line with the spirit in which you enter marriage, but take a step back and look at the implications:
- if one of you goes into debt, creditors have a claim to all of your assets – that’s your assets as well
- if one of you has your own business and becomes insolvent, your home and all assets, in both of your names, becomes fodder for debt collectors
- there is no financial or even contractual independence, certain transactions, such as the sale of shares, need the consent of both parties
- if one partner should die, the estate of both the deceased and surviving partner will be wound up because it is a joint estate – not great for the surviving partner who will find themselves in legal limbo possibly without access to funds in addition to the trauma of losing a loved one.
- on death or divorce, the estate is divided equally
Suddenly, a marriage contract becomes rather relevant.
What is an Antenuptial Contract?
An antenuptial contract, prenuptial contract, prenup, marriage contract or ANC in essence is an agreement entered into by parties prior to getting married, they will then be married out of community of property..
There are two types of antenuptial contracts:
- marriage out of community of property without accrual
- marriage out of community of property with accrual
Antenuptial Contract without accrual – assets acquired before or during the marriage remain separate throughout the course of the marriage. Assets are not shared and each partner has a separate estate.
Advantages of marriage out of community of property with the exclusion of the accrual
- If one of the parties becomes insolvent, creditors may not attach the assets of the other
- Each of the parties is still legally obliged to offer financial support to one another should one of you be unable to support himself/herself.
- Full contractual freedom
- In second marriages, marriages where the parties already have children, where both parties have already amassed a sizeable estate or in so-called marriages of convenience it simplifies matter drastically.
Disadvantages of marriage out of community of property with the exclusion of the accrual
- in the case of death or divorce, you are entitled only to those assets you have accrued in your name – should one of you choose to stay at home to raise children, that partner would not be entitled to the assets accumulated by the other partner
Best for and most often used by those who have accumulated substantial assets prior to marriage and wish to protect them.
Antenuptial Contract with accrual – each partner states the value of their respective assets at the beginning of a marriage. Thereafter any assets are shared 50/50. One can state that specific assets be excluded from the accrual, such an inheritance and donations etc.
Advantages of an Antenuptial Contract with accrual
- You both share in the wealth accumulated during the marriage
- If each of you owned property before the marriage, it remains in your respective names
- You each conduct your own independent financial affairs.
- If one of you goes into debt, it cannot be claimed from the estate of the other
- In the case of divorce, any assets made whilst married are shared – it doesn’t matter who acquired them; each partner’s current net asset value is calculated by subtracting all liabilities from assets
- The antenuptial contract can be tailored to suit your needs
- It protects the partner who remains at home to care for the family