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Simon Dippenaar
Admitted Attorney of the High Court of South Africa.
B.Bus.Sci (UCT), LLB (UCT), PDLP (UCT)
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Antenuptial Contract (ANC) – What is an Antenuptial Contract?

Why you might enter into an antenuptial contract

Antenuptial Contract – Two people planning a wedding think their love will last forever. Why else would they be intending to marry, if not to live happily ever after? Unfortunately, statistics prove that this does not always happen. In fact, according to Stats SA, roughly four in 10 marriages end in divorce within the first 10 years.

Antenuptial Contract - What is an ANC?

While it can be problematic to discuss an antenuptial contract as part of the wedding plans, indicating that one or other partner doubts the potential of the marriage to last, this document can prevent a lot of heartache later on. Not dissimilar to a will (except that everyone dies, whereas not everyone divorces), it is unpleasant to think about but, once done, can be forgotten until it is needed. And if it is ever needed, it can make life a lot easier for everyone involved.

Some couples find that an ANC actually contributes to a more harmonious marriage, as many of the financial disputes that can damage an otherwise healthy relationship are mitigated by the terms of the contract.

What is an ANC or antenuptial contract?

An antenuptial contract sets out the rules and conditions that will govern the division of assets, both during the marriage and on its dissolution. ANCs don’t apply to marriages in community of property, because in this type of marriage both parties are the owners of the joint estate. Marriages without community of property may be with or without accrual.

Marriage out of community of property, without accrual:

In this situation, each person retains ownership of the property they owned prior to the marriage, as well as all property accumulated during the marriage. They also hold sole responsibility for any debts incurred before or during the marriage. Each party may dispose of their estate in a will as they choose.

Marriage out of community of property with accrual:

This scenario is a bit more complex than marriage without accrual and really only becomes significant if the marriage is dissolved. When that happens, the difference between the net increases in the respective estates during the marriage is divided equally between the two parties, according to a standard calculation. Certain assets are excluded, according to the terms of the Matrimonial Property Act. Both parties are free to make their own wills, but either party may have a claim that may need to be settled, according to the accrual system, before any distribution can take place.

What an ANC might look like

Antenuptial contracts are quite straightforward. There is no need for a long itemisation of assets. The contract for a marriage out of community of property with accrual includes the following (e.g.):

  • There will be no community of property between the parties
  • There will be no community of profit or loss between the parties
  • The accrual system referred to in the Matrimonial Property Act will apply to the intended marriage between the parties
  • The net values of the estates of the parties at the commencement of their intended marriage are included
  • Exclusions (as per Matrimonial Property Act) are noted
  • Calculation of accrual is given
  • Any other conditions that may impact the accrual, such as insolvency, are noted
  • Both parties declare their intention to solemnise the marriage and promise each other the full force of their legal obligations with respect to the marriage and property

The contract for marriage without accrual is even simpler. It states (e.g):

  • There will be no community of property between the parties
  • There will be no community of profit or loss between the parties
  • The accrual system referred to in the Matrimonial Property Act is expressly excluded
  • Both parties declare their intention to solemnise the marriage and promise each other the full force of their legal obligations with respect to the marriage and property

Need help with your ANC?

Simon Dippenaar and Associates are experts in family law. We can help you decide which type of marriage is best for you, and draft an ANC that is appropriate for your needs. If you choose marriage out of community of property with accrual, we can assist with the valuation of your respective estates prior to the marriage, and draw up the corresponding contract. If you would like to discuss your options in confidence, call Simon today.

At SD Law, you are assured of discretion and sensitivity. Contact Simon on 087 550 2740 or contact us here.

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