“In sickness and in health,

Till death do us part …”

 

These two sentences are part of the marriage vows.  But what does happen in regard to finances when a spouse dies and……what happens when it is NOT “till death do us part” but when the vow turns out to be “till DIVORCE do us part”.  

A brief introduction into what an Antenputial Contract is, what protection it offers and why one should consider entering into one (or not) with one’s prospective husband/wife.

BRIEF HISTORY

South African marriages are governed by the Matrimonial Property Act of 1984 (“the Act”) and in terms of the Act, two matrimonial regimes exist in South Africa, namely:  

  • in community of property (“ICOP”) (which is the default regime) ; and 
  • out of community of property (“OCOP”).    Then, within OCOP, we have two choices (“systems”) namely :  (1) with accrual or (2) without accrual.   The consequenses of these two “systems” are different. 

PROCEDURAL REQUIREMENTS 

Only a practising attorney and Notary can draft and attend to the execution of an Antenuptial Contract.  The attorney/Notary will guide the parties by explaining the different contracts, the procedure and assist the parties in formulating the contract in such a manner so as to ensure that it provides for their specific needs.  

Once the parties are satisfied with the contract, it is signed (executed) before the attorney or a Notary Public.  If the attorney is also a Notary Public, he or she can perform both functions.

The contract must be concluded before marriage and it is advisable that the parties consult with an attorney as early as possible to ensure that there is sufficient time for them to carefully consider the terms of the contract, reach agreement thereto and are therefore not rushed into signing the contract.  The signed contract must be registered in the Deeds Office.  If signed in South Africa, it must be registered witin 3 months of signature and if signed overseas, registration must be within 6 months of signature.  Registration can be after the marriage – the important part is that signature by the parties before the Notary Public must be prior to the marriage.

It is possible to enter into an Antenuptial Contract after marriage – this is called a Postnuptial Contract.  Parties who were married prior to 1 November 1984 (the date when this Act came into effect) as well as parties who married after this date can, in terms of section 21 of the Act, apply to court to change their matrimonial regime.  This is however a far more complicated and expensive procedure because permission has to be sought and given by the High Court for registration of a Postnuptial Contract.  Provided that the parties can convince the Court that sound and good reasons exist for them not having entered into the contract prior to their marriage;  sufficient notice has been given to all the creditors of the spouses and that no other party will be prejudiced by the proposed change, the Court may authorise them to enter into a postnuptial contract and to register same in the Deeds Office.

South Africa’s has a long and well established legislative and case-law framework in respect of Antenuptial Contracts and, provided that your South African contract has been entered into in accordance with and complies with all the procedural requitements and the provisions of the Act and therefore finds that your agreement is valid and enforceable, our Courts recognise and give effect thereto.   South African Courts are empowered to apply foreign law in divorce matters.  Therefore, when dealing with a foreign Antenuptial/Prenuptial Agreement, our courts have regard to and consider, inter alia, the procedural requirements and any legislative as well as case-law framework, if applicable, of such foreign country to decide the validity and enforceability of such foreign agreement. 

GENERAL ADVANTAGES OF ENTERING INTO AN ANTENUPTIAL CONTRACT

  1. It offers financial protection to parties’ own, separate assets and neither party has to ask the other party’s permission to deal with his or her assets.
  2. Each party retains complete autonomy and control over his or her own assets – those which they have at the start of the marriage and those which they gather during the course of the marriage.  
  3. The parties do not share in one another’s profits/assets (except for accrual sharing, see below) nor are they responsible for each other’s liabilities(debts)/losses.  This provides protection against each other’s creditors.
  4. It provides protection in the event that one party is declared insolvent.
  5. Any claim which a party may have against his or her spouse in terms of the Antenuptial Contract, comes into effect on the termination of the parties’ marriage regardless of whether it is by death or divorce.

For more information on the advantages and effects of the different types of Antenuptial Contracts and to have a “tailor-made” Antenuptial Contract to suit your very specific needs, call us on:  (021) 418-0770.