You Do Need a Contract

Thursday, November 23, 2017

Your wedding and your Antenuptial contract

By Janine Bredenkamp, partner, J Bredenkamp Inc
So, you’re getting married… and you want your wedding day to be perfect. Aside from all the other arrangements and plans that you have to consider, of great importance is that you should be giving serious thought to and/or seeking advice as to whether or not, you should have a marriage contract (ANC). It is very important that you and your future spouse discuss and decide which marriage system will be best for you as it has implications on both your future financial risks and benefits. 

In South Africa there are two ways to get married: 

If you do nothing other than appear in front of a marriage officer then, under South African law, you are automatically married in community of property.

Married in community of property means that:

you share everything, including each other’s debts
you need each other’s permission for all financial transactions
and with divorce or death, everything is divided in half

None of us, particularly when we are starry eyed and in love, like to think about death or divorce and how we will divide our assets if the relationship turns sour; but, as we are in a time where one in five couples is getting divorced, you should make sure that you get the best of both worlds, for better or worse!

The second option is to enter into a marriage contract with one another before the marriage. This is an antenuptial contract (often referred to as an ANC), an agreement for those who intend marrying each other out of community of property. It not only influences what will happen to your assets and liabilities during your marriage, but also if you divorce or when you die.

Drawing up an antenuptial contract certainly is not about being selfish, grabbing more than your fair share or as many believe, preparing for divorce. It really is not. Because an ANC contract protects you and your assets if your spouse dies, it is about protecting your (and possibly also your children’s) future financial security.

An antenuptial contract must be prepared by a Notary (a Notary is a lawyer, but not all lawyers are notaries) and can include anything that is not contrary to the morals of our society. It must be signed before the wedding and it is registered at the Deeds Office.

With an antenuptial contract:

you do not share each other’s debts;
you can both act on your own in financial transactions - you and your spouse are seen as separate legal entities

If you have an ANC, you will be married out of community of property with accrual (the most common contract) unless the accrual system is specifically excluded.

The accrual system means that:
there is a sharing of the assets gained during the marriage on death or divorce
you can have an antenuptial contract where certain assets or businesses are excluded from the accrual
you can agree to share in the accrual on a sliding scale which is dependent on the number of years that you are married

The options are infinite.

Your Notary will guide and advise you on the best antenuptial contract for you as a couple. With your wedding fast approaching it is far better that you this particular discussion before you get married so on the day you’ll both have peace of mind and a certainty regarding the future.

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