LEGAL GUIDANCE ON ANTENUPTIAL CONTRACTS

No, in fact you are planning for a prosperous life together by preparing for all eventualities. The point of an antenuptial contract is to protect the household, not destroy it. It can protect your household from financial risk that may come as a result of you starting a business or entering into high risk contracts, through limiting the risk to one estate and not the joint estate.

In South Africa a legal consequence of entering into a marriage is the joining of your estate with your intended spouse’s estate, creating a single estate called the joint estate. This means all your assets, as well as your liabilities, are equally shared between you.

It is a contract signed before a marriage is solemnized (formally entered into), but can be concluded after marriage, at a substantial cost. For the purposes of this summary we will focus solely on contracts entered into before marriage.

If you own a million rand house before you are married, that house becomes the property of the joint estate once you are married – it belongs to both of you. Similarly, if you owe a million rand on the house, you are both liable for that debt once you are married.

This is the default setting – a marriage in community of property. However, signing an antenuptial contract gives you the option of keeping your estates separate, whilst enjoying the fruits of marriage. Thus that one million rand debt can be managed in such a way that, legally, it does not affect the whole household. The antenuptial contract allows you and your spouse to plan your future knowing that you are insulated should, either of you, for example, lose your job, not succeed in business or run into any other financial difficulty.

The advantage of an Antenuptial Contract comes with the accrual system. Accrual is where you are married out of community of property (as a result of an ANC) but, everything that is gained during the life time of the marriage is equally shared. This is the same as community of property without the risk of community of property.

This is why we believe the entering of an Antenuptial Contract is for the protection of marriage, it limits your exposure and with the benefit of a community marriage.

As a couple you can agree to place your assets in a trust upon the birth or adoption of your first child; you can agree on when and if accrual should apply. Some couples agree that accrual shall apply after a year of marriage or after the birth of the first child. There are many variations that can be tailor made for your requirements.

We hope once the Antenuptial Contract is signed you never have to see it again but, let it protect and guide you if trouble ever comes to your intended union. For assistance with Antenuptial Contracts feel free to contact me on 082 401 8834 or email: law@zeniattorneys.co.za

Yours sincerely,

Zeni Nyazema

Admitted Attorney & Notary