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Despite the challenges being faced by so many during the pandemic, love is still around and many weddings are taking place, albeit on a much smaller scale. It is still, if not more, important for couples to seek the right advice on their marital regime.

An antenuptial contract (“ANC”) has to be validly entered into before a Notary Public before the marriage is officiated, otherwise the marriage will automatically be one in community of property. A marriage out of community of property provides some very important protections to the respective spouses whether the parties choose with or without accrual.

During a marriage out of community of property, each spouse will retain his or her separate property and would have complete freedom to deal with that property as he or she chooses. Some other protections not afforded to spouses married in community of property include:

  • If either party is declared insolvent, the other spouse is protected from the insolvent spouse’s creditors
  • The respective spouses will not be held liable for any debt that the other spouse might have incurred prior to the marriage, as well as those during the marriage
  • Specific assets may be excluded from the marriage where the spouses choose to do so
  • Each spouse retains their own financial identity
  • An ANC can be tailored to fit the unique circumstances of the individual spouses
  • The ANC can include important terms and conditions which relate to the division of assets in the case of death or divorce.

Engaged couples should arrange an appointment with a Notary (an attorney with the additional qualification of  “Notary Public”) prior to the marriage being solemnised. Depending on the complexity of the respective spouse’s requirements, it may be advisable to do this a few weeks before the marriage. Once the ANC is duly drafted and signed in front of the Notary, the Notary will arrange that it is registered in the relevant Deeds Office and the subsequent marriage will be a marriage out of community of property. 

Please feel free to contact Martin Sheard or Junél Hickman on 021 673 4700 should you have any further queries in this regard.

021 673 4700

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