Antenuptial Agreement
Antenuptial Agreement

Antenuptial Agreement

An Antenuptial agreement is a written contract, sometimes also referred to Prenuptial agreement, between two people who are about to get married, setting out the terms of their assets, treatment of future earnings and assets and potential division if the marriage is later dissolved either via divorce or death.

If a couple gets married without any antenuptial contract it means that you are married into Community of Property by default. This means all the liabilities and assets are seen as one estate.

An Antenuptial Agreement is an Agreement that is entered into by both parties that will determine the Matrimonial System applicable to the Marriage. This agreement is signed by both parties, two witnesses and a Notary and is registered in the Deeds Office.

In South Africa there are three Matrimonial Regimes:


Married in Community of Property


Should the parties not sign an Antenuptial Agreement,
the Marriage will automatically be In Community of Property.
This will entail that all the assets prior to the marriage and the assets that are acquired during the marriage will be the joint property of both parties in equal undivided shares. Both parties will be liable for the Debts that were obtained during and before the marriage of each party.
The Risk with the regime is Insolvency. Insolvency of one of the spouses leads to Insolvency of the Communal Estate.
Should one of the spouses pass away, the communal estate will be administrated and various expenses will be calculated on the value of the Communal Estate.


Married out of Community of Property


Should one sign an Antenuptial Agreement, the Parties needs to state whether the Accrual System needs to be included or excluded.
Where the Accrual system is excluded the parties will be Married out of Community of Property which will entail that:
– each spouse remains the sole owner of the assets which was owned prior to the marriage, and also the assets that were acquired during the Marriage.
– each spouse remains responsible for their own liabilities that were obtained before and during the marriage.
Each spouse can enter into a contract, dispose of assets etc without obtaining the other spouse consent.
One spouse cannot claim assets of the other spouse during a divorce.
When one spouse has passed away, only that spouse estate will be administrated.


Married out of Community of Property with Accrual


Before the parties enter into the Agreement, the individual estate of each party is calculated. These amount/assets are specifically entered into the agreement.
When the Marriage is dissolved, by way of divorce or by death, the accrual needs to be determined. How the Accrual is calculated is by the valuation of each parties estate and then subtracting the value of the estate when the parties entered into the marriage. This gives you the accrual of each party estate. Example person, A and B have entered into a contract with an Accrual. A estate value is R20, 000.00 and B estate value is R10, 000.00. On the date that the Marriage is dissolved, A value of the Estate is R50,000.00 and the value of B Estate is R50, 000.00. During the Marriage, A Estate has grown with R30,000.00 and B Estate with R40,000.00. The difference of R10, 000.00 between the estates will then be divided between the parties.
This Regime has the benefit that each party can enter into contracts, dispose of assets etc without the consent of the other party. Further, should one party be insolvent, it does not affect the other party on the same basis as with In Community of Property. However what should be kept in mind is the payment of the accrual when applicable, especially if the one spouse has passed away and the surviving spouse needs to make an accrual payment.

DRAFTING OF THE CONTRACT:

We would like to consult with you in regards to the various regimes to provide you with advice on which regime will be the best for your personal circumstances. Should you not be able to consult with us, we will also be able to provide assistance. We kindly refer you to our Application form that can be submitted to our office.
Our office will prepare the Antenuptial Agreement for you as well as a Power of Attorney in terms where we will sign your agreement on your behalf before the Notary.

An Antenuptial Agreement needs to be signed by both parties and a Notary before the date when the parties enter into the Marriage. Should the parties not sign an Antenuptial Agreement the Parties will automatically be Married In Community of Property.
An Antenuptial Agreement is important as your Matrimonial System has an effect on the administration of the Estate when you have passed away as well as with a divorce.

If you any questions don’t hesitate to ask