An antenuptial contract is an agreement signed before the marriage by parties who intend to marry each other out of community of property, in other words, each person wishes to retain ownership of his her own assets as opposed to pooling the assets to form one communal estate. If no such agreement is signed, the husband and wife will automatically be married in community of property.
The decision not to enter into an antenuptial contract may have serious consequences, both during the course of the marriage and in the event of its dissolution (whether on death or divorce) and it is therefore advisable to obtain proper advice well before entering into a marriage. One also wants to avoid discussion on the issue directly prior to the wedding and advice should be sought sooner rather than later.
The following pointers aim to give you a little background on the likely content and effect of an antenuptial contract:
1. An antenuptial contract is a contract like any other, and although there are certain automatic and legal consequences of entering into a particular type of antenuptial contract, the contract may be adapted by agreement to suit the particular circumstances of the parties. In fact, even the automatic consequences which would otherwise apply, may be waived or contracted out of by the husband and wife.
2. Prior to 1984 spouses either entered into in community of property or out of community of property In the first instance, the effect is as if the husband and wife became one “person” i.e. the assets are jointly owned and they are jointly responsible for debts and liabilities incurred by either. Except in extremely uncommon circumstances, the nett assets of the parties are equally divided at the end of the marriage. If the husband and wife were married out of community of property, their estates remained entirely separate both during and after divorce.
Since 1984, however, and although parties may still get married out of community of property for a variety of reasons (for example to protect the other’s assets from creditors during the course of the marriage and so as to retain control of their own assets both during and after the marriage) a further option is now available. In terms of legislation passed during 1984, parties may now elect to be married out of community of property and so ensure that their estates (as well as their debts) remain entirely separate throughout the marriage. However, the parties may decide to have what is known as the accrual system apply to their marriage on dissolution. In simple terms, the effect of such a choice would be that on divorce, the growth in the parties’ estates that was built up during the course of their marriage would be shared equally. The thinking behind this option is the recognition of the fact that a marriage constitutes a kind of partnership and that the husband and wife contribute in different ways to the accumulation of assets and wealth during the course of the marriage, which are then shared should the marriage come to an end. However, any assets which were acquired by way of inheritance or donation remain the separate property of the recipient and do not form part of the accrual sharing.
3. Obviously, in order to determine which assets have been built up during the marriage, it is important to record in an antenuptial contract what assets were brought into the marriage by the husband and wife respectively. That is another reason why, if consideration is being given to an antenuptial contract, that it should be discussed and advice obtained well before the wedding. It may be that the prospective husband and wife are not entirely in agreement regarding the values of the assets each will bring into the marriage and one does not want to have disagreements just before the wedding.
4. Since the coming into effect of the Civil Union Act on 30 November 2006, same-sex couples can solemnize and register their civil unions by way of either a marriage or civil partnership. Both marriages or civil partnerships concluded in terms of this legislation, have the same legal consequences as opposite-sex marriages concluded in terms of the Marriage Act. Such spouses therefore also have the option to enter into antenuptial contracts before solemnizing their unions and the paragraphs above apply similarly.
5. Given the fact that none of us have a crystal ball and given the high divorce rate in South Africa, it is vitally important that people planning a marriage get the best possible advice in deciding on whether or not to enter into an antenuptial contact and, if so, what the terms of such an agreement are to be. Although it is unpleasant to contemplate the marriage coming to an end before it has even begun, to do so will ensure a degree of certainty for both parties in making financial decisions and in planning their future.