Entering Into an Antenuptial Agreement

There’s no longer any debate about it: sensible couples enter into an Antenuptial agreement. This vital contract shields the jointly accrued, matrimonial assets against the claims of third parties and creditors, and acts as an indispensable protection of the spouses-to-be against each other in the event of any number of things going awry. Because the Antenuptial contract stipulates terms and conditions for the exclusion of property between the two parties, both spouses – and their jointly acquired assets - are protected against judgements taken against either partner.

Marriage out of community of property

There are two types of marriage out of community of property:

1. With application of the accrual system
If a couple concludes an Antenuptial contract prior to their marriage, the accrual system will automatically apply unless it is expressly excluded in the Antenuptial contract.

The accrual system came into effect in 1984, and is designed to ensure absolute equality between the spouses from the point of commencement of the marriage. The core premise is that each party is entitled to take out the value that he or she brought into the marriage and that the capital growth achieved within the marriage is shared - in equal measure - by the spousal parties, irrespective of any difference in earnings or assets placed in the name of either party, upon termination of the marriage. In this way, protection is given to the assets of both spouses acquired before the marriage and, on dissolution of the marriage (by death or divorce), the matrimonial ‘earnings’ are perfectly shared. In practice, then, the joint assets are valued at the beginning of the marriage, and again at its termination. The increase in the value of the assets is divided in two.

In terms of this marital regime, each spousal party will keep his or her estate and attendant profits and losses separate from those of his or her partner for the duration of the marriage. This option offers the optimal combination of individual safety and a sense of togetherness: while the assets of one spouse are protected against the creditors of the other spouse, the parties will share what they have jointly accumulated upon dissolution of the marriage.

The Antenuptial contract is not without its flexibility. The accrual system can be partially excluded by a variety of provisions. For example, the eventual distribution of the accrual will not be halved, but shared in terms of another specified ratio. Or the provisions of the accrual system will not apply in the event of the marriage being dissolved through divorce. The Antenuptial contract also gives the parties the option to protect certain individual gains had during the course of the marriage. This applies to inherited benefits that can be excluded from the application of the accrual system. Chat to your attorney

2. Without application of the accrual system
The exclusion of the accrual system from the Antenuptial contract effects a complete separation of the spouses’ assets, both those brought into the marriage and those gained during the course of the marriage. This agreement enforces a case of separately managed estates and separate financial development for the course of the marriage, and effectively nullifies any claim on the part of either spouse against the assets of the other should the marriage be terminated.

The alternative – marriage in community of property
Getting married in the absence of an Antenuptial contract automatically imposes the legal condition of marriage in community of property. In terms of this definition, all pre-marriage assets, debts and liabilities are pooled, and carry the risk of being attached by creditors. So, in effect, both spouses are responsible for each other’s debt and there is no protection of either individual’s assets.

Conclusion
There is no best system. The most appropriate choice will depend on the circumstances, needs, and future plans of the engaged couple. The betrothed need to decide well in advance of the wedding whether or not they are going to conclude a marriage contract. A post nuptial registration of an Antenuptial contract is complicated, expensive, and carries no guarantee of success. The Antenuptial contract can be drafted by any attorney and is executed before a notary public.

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Entering Into an Antenuptial Agreement | Wedding Articles