Marriage is a significant life event that brings two individuals together in a legally recognised union. In South Africa, the implications of marriage extend beyond emotional and personal aspects, delving into financial and legal considerations. One crucial aspect of matrimonial planning in South Africa is the prenuptial contract, commonly called a “prenup”, antenuptial contract, or ANC. This legal document is pivotal in determining the financial framework of a marriage and protecting the interests of both parties involved.
Matrimonial property regimes
In South Africa, three primary matrimonial property regimes dictate how assets and liabilities are managed within a marriage.
Marriage in community of property
If a couple decides to marry without a prenup contract, their marriage automatically falls under the “in community of property” regime.
Under this regime, all assets and liabilities, both pre-existing and acquired during the marriage, are shared jointly between the spouses.
While this fosters a sense of unity, it also means that both partners are equally responsible for each other’s debts.
Marriage out of community of property
Couples who wish to maintain financial independence often opt for a marriage out of community of property.
To achieve this, a couple must consult a notary to create an antenuptial or prenup contract, a legal document specifying their financial arrangements.
This contract must be registered in the Deeds Office to be legally binding.
Marriage out of community of property subject to the accrual system
The accrual system is an additional layer that can be added to a marriage out of community of property through the prenup contract.
This system ensures that, upon divorce or death, the wealth accumulated during the marriage is shared, promoting a fair distribution of assets.
Parties entering a prenup contract are automatically placed under the accrual system unless explicitly excluded in the contract.
Creating an antenuptial contract
If a couple decides to marry out of community of property or include the accrual system, they must create an antenuptial contract. This legal agreement serves as a prenuptial agreement and outlines the financial terms of the marriage. Here are essential steps to consider:
Consult a notary
Seek the services of a qualified notary specialising in family law to guide you through the process.
The notary will explain the implications of various clauses and ensure that the contract aligns with both parties’ wishes.
Draft the antenuptial contract
Work with the notary to draft a comprehensive prenup contract that addresses financial responsibilities, asset distribution, and any specific terms the couple wishes to include.
Register in the Deeds Office
The antenuptial contract must be registered in the Deeds Office to formalise the agreement. This step ensures that the contract is legally binding and enforceable.
Accrual system considerations
The accrual system is a unique feature of South African matrimonial law, and its inclusion in a prenup contract warrants careful consideration. Here are key aspects to keep in mind:
- Automatic inclusion: When entering into a prenup contract, the accrual system is automatically applied unless expressly excluded in the agreement.
- Calculation of accrual: The accrual is calculated by determining the difference in the net values of the spouses’ estates at the commencement and termination of the marriage.
- Exclusion of accrual: If the couple wishes to exclude the accrual system, they must explicitly state this in the prenup contract.
Signing the antenuptial contract
Timing is crucial when it comes to signing the prenup contract. It must be executed before the wedding to ensure its legality. Both parties should fully understand the terms and implications of the agreement before signing. This legal document protects individual assets and sets the foundation for a transparent and mutually agreed-upon financial partnership.
Contact Bregman Moodley Attorneys for details
Understanding the implications of each matrimonial property regime and crafting a well-thought-out prenup contract can contribute to a secure and harmonious union where both partners’ interests are protected. Before embarking on the journey of marriage, couples must navigate the complexities of prenuptial contracts to ensure a solid legal foundation for their future together.
Contact our team in Johannesburg for professional assistance in drafting a prenup contract. Additionally, you can browse through our services to find what you need.