Is Your Antenuptial Contract Valid Or Are You Actually Married In Community Of Property?

Recent court decisions, including a decision of the Supreme Court of Appeal, have shed light on Antenuptial Contracts that contain contradictory clauses.

The Matrimonial Property Act 88 of 1984 introduced the option of the parties entering into an Antenuptial Contract which either included or excluded the Accrual System. The Antenuptial Contract with the inclusion of the Accrual System proved to be a very popular choice. The Accrual System provided the benefit of being married out of community of property and profit and loss during the marriage, but that on divorce the party whose estate had shown the greater accrual, would be obliged to pay one half thereof to the other spouse.

However from a number of recent court cases it has become clear that many people who opted for this type of Antenuptial Contract, have, on divorce, been told that their Antenuptial Contract is void and their marriage is one in community of property.

This obviously has far reaching implications particularly in the event of divorce.

These Court cases do not apply to all Antenuptial Contracts and it is only in respect of certain Antenuptial Contracts which the Courts have found incorporate clauses that are “so contradictory and incoherent” that the entire Antenuptial Contract is deemed void.

Many people are unaware of these developments in the law and will only become aware of same in the event that divorce proceedings are commenced. It is accordingly imperative that you have your Antenuptial Contract checked to ascertain whether same contains these “contradictory and incoherent” clauses.

It will be possible to remedy the situation if both parties agree to do so but it is important that this is done by mutual consent and jointly.

So, if you haven’t checked your Antenuptial Contract, please contact us and we can assist you.