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Understanding Antenuptial Contracts

In South Africa, there are several types of marriage regimes

Each with its own set of rules for handling assets and liabilities within a marriage. Each type of marriage has its own set of rules and regulations, which can affect the legal rights and responsibilities of both spouses.

An antenuptial Contract, sometimes called a prenuptial agreement, is a legally binding agreement that defines the patrimonial consequences (in other words, the ownership and division of assets of the party’s) in the event of divorce or death. In this blog post, we’ll cover everything you need to know about an antenuptial contract and how to discuss it with your partner.

Antenuptial Options

Antenuptial Contract Options

Explore your matrimonial property regime options before getting married. You must choose one before getting married. Your choice will have financial and legal consequences. You are therefore urged to carefully consider your options.
Without Accrual

Marriage Out of Community of Property without implementation of the accrual system.
Without Accrual the parties specifically declare that the Accrual system as set out in the Matrimonial Property Act will not be applicable to their marriage and will specifically be excluded. Each spouse retains his/her own assets and own accrual – no sharing unless Antenuptial contract compels donations or court orders transfer of assets.

With Accrual

Marriage Out of Community of Property with the implementation of the accrual system.
The underlying philosophy in respect of the accrual system is that each party is entitled to take out the asset value that he or she brought into the marriage, and then share what they have built up together. It is however possible to draft the Antenuptial Contract in such a way that the parties share both their pre-marital and post-marital assets on a 50/50 basis, just as if they were married in community of property, but without incurring liability for each other’s debt.

In Community of Property

Marriage in Community of Property
The most prejudicial consequence of marrying in community of property, is that assets in the joint estate will always be vulnerable to the claims of creditors of both spouses. This marital regime is definitely not recommended for spouses running their own independent businesses as premarital and post-marital liabilities will become communal, thereby endangering the good standing of not just one, but both spouses.

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F.A.Q - Antenuptial Contracts

What is an Antenuptial Contract?
An antenuptial agreement, commonly known as a prenuptial agreement, is a legal contract couples enter before marriage. It serves as a crucial tool for defining each spouse’s financial and property rights during their marriage and in the event of divorce or the death of one of the partners.
When should we enter into an antenuptial contract?
You must enter into an antenuptial contract before getting married.
Why should we consider an antenuptial contract?

Here are important reasons to sign a prenuptial agreement before walking down the aisle.

  • You are Marrying Someone with Significant Debt.
  • You Wish to Protect Your Assets.
  • You Want to Ensure Financial Security for Both Parties.
  • You Want to Protect Your Business.
  • You do not want to expose your spouse to your business risk. 
Do we have to wait for registration of the antenuptial contract before we get married?
No. On receipt of the signed antenuptial contract or power of attorney, our notary public will issue a certificate to hand to the marriage officer. The certificate will state that the parties entered an antenuptial contract and that the marriage will be out of community of property.
How do we get our contract after registration?

After delivery of the original antenuptial contract from the offices of the Registrar of Deeds the document can be collected from our offices. The document can also on request be couriered or sent via Postnet at an additional fee.

I have questions?

Please contact us via e-mail mail@patherandpather.co.za to discuss your specific circumstances. It is important that both parties have a clear understanding of their marital regime choices before proceeding. Please note that we cannot give legal advice over the phone. Especially if we have not received your application form.

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