Antenuptial contracts: Financially safeguarding yourselves

Property Practitioners Bill
October 4, 2019

Getting married is more than just saying “I do” and choosing a wedding cake: you must also choose a marital property regime. This is not planning for divorce, but rather, planning for one’s future!

There are three marital regimes to choose from, each with their own advantages and disadvantages:

  1. Marriage in community of property: your and your partner’s estates become a “joint estate” and you share all assets and liabilities, barring a few automatically excluded assets. You also have to have each other’s permission to, for instance, open an account or obtain a bond.

Should one party become insolvent, the entire joint estate can be attached by creditors to settle debts and the parties can lose everything.

Marriage in community of property is the default position if you do not have and antenuptial agreement, although this can be changed later through an application to the High Court.

  1. Marriage out of community of property: each spouse retains a separate estate and the freedom to deal therewith as that spouse sees fit. In this instance, spouses are protected from one another’s creditors.

If one chooses to be married out of community of property, both partners must sign the antenuptial agreement in front of a notary before getting married. This is registered at the Deeds Office and becomes a public record.

Should you decide to marry out of community of property, you can elect whether the accrual system will apply or not.

2.1. Without the accrual system, the estates of the spouses remain separate from the beginning to the dissolution of the marriage, i.e. on death or divorce. The spouses have no claim to the increase in the other spouse’s estate.

2.2. If the accrual system applies, the gains of the spouses’ respective estates are compared on the dissolution of the marriage, and an adjustment is made. In other words, the increases in the estates from the date of the marriage are compared, and the difference is divided in two.

It is important to consult a notary timeously before entering into a marriage.

 

Lili Von Geyso | Senior Associate

E: l.vongeyso@bissets.com

Areas of Expertise: Litigation, Deceased Estates, Contractual Law, Labour Law, Notarial, Immigration Law

 

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)