All marriages end – either by death or divorce.
The ease, simplicity and fairness of that ending is determined by the matrimonial property regime you choose before getting married.
What is an antenuptial contract / prenuptial agreement?
An antenuptial contract, also commonly called an ANC or prenuptial agreement in South Africa, regulates the terms and conditions of a marriage between prospective spouses.
The decision to marry in community of property or with a prenuptial agreement determines who gets what in case of death or divorce. Making the wrong decision can lead to great emotional hardship, delays and frustration. This is an important one that needs to be carefully considered by all couples planning marriage.
We understand the last thing you want to think about during the pressure of wedding preparations is what happens if you get divorced but, with more than four in 10 marriages in South Africa ending in divorce before the 10th anniversary, it is a serious matter you must not overlook.
Why choose a family lawyer for your antenuptial contract?
As leading South African family lawyers, we see the practical consequences of marital property regime choices every day. Our experience can guide you in making the best choice and making sure that your prenup agreement or cohabitation agreement exactly reflects your requirements.
Main Marital Property Regimes
The main marital property regimes are:
- Marriage In Community of Property (no antenuptial contract)
- Marriage Out of Community of Property Without Accrual (antenuptial contract needed)
- Marriage Out of Community of Property With Accrual (antenuptial contract needed)
The default option: in community of property (no antenuptial contract)
If you do not enter into a prenuptial agreement before you get married you will automatically be married in community of property.
This means that:
- All debts and assets of both parties are joined into what is called a ‘common estate’, which is owned equally by both.
- Everything earned, bought, inherited or acquired in any way during the marriage goes into the common or joint estate.
- Money in either spouse’s bank account legally belongs to the joint estate.
- Any debts incurred by either party bind the joint estate. This can be a serious problem in the case of insolvency because no assets are protected and both parties will be deemed insolvent.
- If one party enters the marriage with significantly more assets that the other, they immediately forfeit ownership of half of everything to the other.
- When the marriage ends, the entire estate, including debt, is equally divided. Whether it ends by death or divorce, this process can be complicated and take a long time.
This is the way people traditionally married, but it is perhaps not best suited to modern reality.
Today, there are two good alternatives to consider while planning your wedding: out of community of property – with or without accrual.
Out of Community of Property Without Accrual (Antenuptial Contract)
Out of community of property without accrual is like getting married but staying single as far as your finances are concerned. Each partner’s estate remains exclusively theirs before, during and after the marriage:
- All debts and assets of each party remains exclusively theirs when they marry.
- Everything earned, bought, inherited or acquired in any way by either spouse during the marriage remains exclusively theirs and does not affect their spouse.
- Money in either spouse’s bank account belongs exclusively to them.
- Debts incurred by either party are exclusively theirs. Insolvency of one partner does not affect the assets or legal status of the other.
- If one party enters the marriage with significantly more assets than the other, these assets remain theirs during and after the marriage.
- The end of a marriage under this regime is financially much faster and simpler.
In out of community of property without accrual any significant increases in wealth or debt by one party during the marriage are not shared by the other party in case of death or divorce.
Out of Community of Property With Accrual (Antenuptial Contract)
Out of community of property with accrual is exactly like out of community of property without accrual, except that the increases or decreases in each partner’s estates are shared.
In this marital regime, each partner’s estate is valued at the time of marriage, and again when the marriage ends. This can be complicated and cause delays, but is often chosen as the fairest solution by partners who are both independently wealthy before getting married.
Prenuptial, Antenuptial, Prenup, Cohabitation – it can be confusing.
We understand you have a thousand decisions to make before your wedding and want to resolve this quickly but intelligently.
Make an appointment now with Divorce Attorneys Cape Town to guide you through the antenuptial contract options, answer your questions, and draw up the agreement you decide is best for you.
Call Divorce Attorney Cape Town now and put our years of practical knowledge and experience to use for you. You can be assured we will guide you to make the best choices.
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