What About Your Antenuptial Contract

None of us like to think about things like death or divorce particularly when your current focus is on choosing a wedding dress, designing rings and planning for your big day. But not giving thought to these uncomfortable details can often be an expensive mistake down the line. There are legal and financial consequences to getting married and it is important to know just what these are before taking the plunge.

An Antenuptial Contract (otherwise known as an ANC) is one of the most important documents you will sign during your lifetime because it is this document which will govern what will happen to your assets and liabilities in the case of death or divorce.

An Antenuptial Contract is not a ‘one-size fits all’ document so it is essential that time is taken to meet with an Attorney a good while before the date of your marriage to ensure that all possible eventualities are discussed and decided upon.

Some important points to keep in mind are the following:

1. If you don’t enter into an Antenuptial Contract your marriage will automatically be ‘in community of property’.
2. Because an Antenuptial Contract also governs what will happen to your assets and liabilities upon your death, it does not mean that by entering into one, you are already preparing for a divorce.
3. If you enter into an Antenuptial Contract your marriage will be regarded as being either ‘out of community of property with the application of the accrual system’ or ‘out of community of property with the exclusion of the accrual system’.
4. The accrual system refers to the manner in terms of which assets which are acquired during the course of the marriage are shared between spouses.
5. The underlying principle behind the accrual system being that spouses will have the opportunity to exclude assets which they may have acquired before the marriage with an understanding that assets acquired during the marriage will be shared between them.
6. If spouses opt to exclude the accrual system completely, any assets belonging them prior to the marriage or acquired during the marriage will remain the property of the person who acquired them or in whose name they are registered, on death or divorce.
7. With a marriage out of community of property, your estate is regarded as separate to that of your spouse. As such, if your spouse incurs debt without your knowledge or consent or has a gambling problem for example, his or her creditors will not be able to attach your assets to recover such debts.
8. Both spouses to the intended marriage must consult with the Attorney who will be drawing up the Antenuptial Contract to ensure that both are fully aware of the what the consequences of the agreement are.
9. An Antenuptial Contract is a binding legal document which, once entered into, must be registered at the Deeds Office. It must be entered into before the marriage takes place therefore it is important that attention is given to this document timeously.