When you’re planning to tie the knot, the last thing you should consider is the possibility of your marriage ending. However, considering an antenuptial Contract (ANC) is a responsible and essential step for couples getting married in South Africa. An antenuptial Contract, sometimes called a prenuptial agreement, is a legally binding agreement that defines the patrimonial consequences (in other words, the ownership and division of assets of the party’s) in the event of divorce or death. In this blog post, we’ll cover everything you need to know about an antenuptial contract and how to discuss it with your partner.

Understanding antenuptial Contracts in South African Law

In South Africa, there are several types of marriage regimes, each with its own set of rules for handling assets and liabilities within a marriage. Each type of marriage has its own set of rules and regulations, which can affect the legal rights and responsibilities of both spouses. Learn more about the various types of marriage contracts here. When trying to understand the most common types of marital regimes, it is important to know these common terms:

  • In Community of Property: By default, all marriages without an antenuptial contract fall under this regime. This means that all assets and liabilities acquired before and during the marriage are considered joint property, shared equally by both spouses. In other words, if you and your spouse fail to enter into an Antenuptial contract, you will automatically be deemed married “in community of property”. 
  • Out of Community of Property: To opt for this regime, you and your partner need to sign an antenuptial contract, attested by a Notary,  before getting married. Under OCOP, your assets and liabilities are kept separate. You will not be responsible for your partner’s debts, and you will have control over your own assets. There are 2 types of antenuptial contracts (ANC); an ANC can be either with the application of accrual or without accrual. 
  • In a contract with accrual, both spouses agree to keep their assets separate during the course of the marriage. However, in the event of death or divorce, the spouse whose estate shows no growth or a smaller accrual than the estate of the other spouse (or his/her estate, if s/he is deceased), has a claim against the spouse whose estate shows the greater increase/accrual, for half of the difference between the respective accruals. 
  •  In a contract without accrual, each spouse’s assets remain separate throughout the course of the marriage, and in the event of death or divorce, each spouse keeps their own assets and property. 
  • It is crucial to note that, an ANC must be signed by the spouses and attested by a notary before your marriage date – failing which you shall be deemed married IN community of property. It is thus vital to ensure that your ANC is drawn up, concluded and signed by yourselves and the notary before such date.

Why should you consider an antenuptial contract?

There are several reasons why couples might consider an antenuptial contract:

1. Protecting Personal Assets

One of the primary motivations for opting for an ANC is to protect personal assets. If you or your partner have substantial assets before entering into marriage, such as property, investments, or inheritance, can be excluded and thus safeguarded from being included in such spouse’s accrual in the unfortunate event of a divorce or death. This protection ensures that your individual wealth remains with you.

2. Avoiding Debt Liability

ANC’s also serve as a shield against debt liability. In marriages without an ANC, spouses are typically jointly liable for debts incurred by either partner before or during the marriage. With an ANC in place, you won’t be held responsible for your spouse’s debts, giving you financial security and peace of mind.

3. Business Interests

If you are a business owner or plan to become one in the future, an ANC is particularly important. It can protect your business from being included in divorce settlements. Without an ANC, your business assets may be considered marital property, putting the business at risk during divorce proceedings. An ANC can separate your business from your marital assets, ensuring its continuity and integrity.

4. Inheritance and Legacy

For those who anticipate receiving an inheritance or wish to preserve a family legacy, an ANC can be instrumental. This contract ensures that inherited assets and family heirlooms remain within your family’s lineage. Without it, there is a risk that these valuable assets could be included in the communal property of your marriage.

5. Clarity and Transparency

An ANC can contribute to your marriage being more financially transparent and harmonious. It explicitly defines the division of assets and liabilities, reducing potential conflicts and misunderstandings. This clarity can help both partners maintain trust and a clear understanding of their respective financial responsibilities within the marriage.

How to discuss an antenuptial contract with your partner

When discussing the prospect of an antenuptial contract with your partner, it’s essential to approach the conversation thoughtfully and with sensitivity. First and foremost, choose the right time and place for this discussion. Opt for a relaxed and private setting, ideally when both of you are in a good mood and have ample time to engage in a meaningful conversation.

Next, explain the benefits of having an antenuptial contract. Emphasise its advantages, such as protection for both partners and clear delineation of financial expectations within the marriage. Listening actively is a crucial aspect of this dialogue. Provide a safe space for your partner to express their thoughts, concerns, and questions. Be open to their input and make a genuine effort to address any worries they may have. Maintaining a tone of respect and empathy throughout the conversation is vital. Remind yourselves that this discussion is about safeguarding the interests of both parties, ensuring a fair and just resolution in the event of unforeseen circumstances.

Consider consulting a legal professional, specifically one with expertise in South African family law, to help draft the antenuptial contract. The team at Pagel Schulenburg can provide valuable guidance and answer any legal questions that may arise during this process. We work with numerous couples about to tie the knot.

It’s important to avoid presenting the antenuptial contract as an ultimatum. This process should involve mutual consent and understanding rather than coercion or pressure. Grant your partner the time and space they need to think about the decision. If they require time for reflection, respect their need for an informed and considered choice.

Remember that an antenuptial contract is not a prediction of the future but a precautionary measure. It’s about ensuring that both partners are protected and that there is a clear understanding of how financial matters will be handled during the marriage and in the event of its dissolution. If you’re considering an antenuptial contract, Pagel Schulenburg is here to assist you. Our experienced legal professionals can guide you through the process and ensure that your ANC is tailored to your specific needs and concerns. Protect your future and your assets by making informed decisions about your marriage. Contact us today for expert legal advice and assistance. Email anzel@pagelinc.co.za for assistance.