Getting married marks an exhilarating period filled with thoughts of potential venues, wedding attire, and your future living arrangements. However, it’s crucial to allocate time for contemplating an antenuptial agreement (AN). This legal document is vital for dictating the management of assets and finances within a marriage.
In South Africa, the default assumption is that marriages are automatically regarded as being in community of property, unless you enter into an antenuptial contract.
To help you understand and effectively navigate antenuptial agreements, we’ve compiled answers to some commonly asked questions.
Frequently asked questions about antenuptial agreements
What is an Antenuptial Agreement? An antenuptial agreement, commonly known as a prenup, is a legal contract established before marriage, outlining the management of assets and finances during and potentially after the marriage. The decision on which marriage contract to adopt will determine the distribution of assets and liabilities in the event of divorce or death.
What are the main marital property regimes in South Africa?
- Marriage in Community of Property (no AN needed)
- Marriage out of Community of Property with accrual (AN needed)
- Marriage out of Community of Property without Accrual (AN needed)
What are the types of antenuptial agreements in South Africa?
With accrual: Shares the growth of each spouse’s estate during the marriage, considering only assets acquired after marriage.
Without accrual: Each party retains their individual assets and liabilities, both during and after the marriage, often chosen when substantial assets are involved before marriage.
Why is full disclosure of assets important?
Full transparency in disclosing all assets and liabilities is crucial for creating a fair and valid agreement.
How are future inheritances and gifts treated?
The treatment of future inheritances and gifts, whether included in the joint estate or kept separate, should be clearly specified in the agreement.
What about debts and liabilities?
The agreement should outline how debts incurred before and during the marriage will be managed.
How does business ownership affect an AN?
The impact of business ownership on the marriage must be addressed, particularly vital for entrepreneurs and business owners.
What are the legal requirements for an AN?
The AN must be signed in the presence of a notary and notarised before the wedding, and registered at the Deeds Office within three months of the marriage.
Can I draft an AN after getting married?
No, an AN should be drafted and notarised before the wedding. Changing your marital regime after the wedding is possible but can be costly, as it requires a court application and are subject to certain legal procedures.
An antenuptial agreement is not just a legal formality; it’s a practical tool for managing your joint financial life. By considering these key points, you will be able to enter into marriage with clarity and confidence about your financial future.
Remember, seeking legal advice is essential in ensuring that your antenuptial agreement is fair, valid, and reflective of both parties’ wishes and needs.
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).