by Anashya Jugmohan
Antenuptial contracts (ANCs), commonly known as prenuptial agreements, are often misunderstood and surrounded by myths.
This article aims to speak more about these myths and clarify the importance and functionality of ANCs within the context of South African law.
Myth 1: Antenuptial Contracts are Only for the Wealthy
One common misconception is that ANCs are only necessary for wealthy individuals or those with substantial assets. In reality, ANCs are beneficial for couples of all economic backgrounds.
They provide a clear framework for asset and debt management during marriage, which can prevent disputes during the marriage and effectively assist in the management of financial affairs between partners.
Myth 2: Antenuptial Contracts Predict Divorce
Another myth is that creating an ANC means the couple are planning ahead for divorce or attempting to “short-change” their partner from benefiting. However, an ANC can be a practical measure to protect both parties’ interests and provide clarity on financial matters, which can actually strengthen the marriage by reducing potential conflicts over money.
The matrimonial regime is also considered upon the death of a partner, in relation to the division of assets, and for this reason it is always a strong recommendation that parties should also consider preparing their Will / estate planning when considering their ANC.
A Will can proffer assets as bequeathed to a spouse, notwithstanding the provisions of the ANC. When considering an ANC, always take legal advice on your options in respect of estate planning alongside the provisions of the ANC.
Myth 3: All Antenuptial Contracts are the Same
Many believe that all ANCs are identical. However, there are two primary types of ANCs in South Africa: those with accrual and those without accrual.
An ANC with accrual allows for a calculation to account for the sharing of assets accumulated during the marriage, while an ANC without accrual keeps each spouse’s assets separate. Each type caters to different needs and financial situations.
An ANC with accrual can also be structured to specifically exclude certain assets from being considered in a final calculation.
Myth 4: Antenuptial Contracts are Complicated and Expensive to Set Up
Setting up an ANC is often perceived as a complex and costly process. While legal advice and notary services are required, the process is straightforward when handled by experienced professionals.
The costs associated with setting up an ANC are minimal compared to the potential financial disputes and legal fees that could arise in the absence of such an agreement.
Many attorney firms with Notaries in-house (such as Pather & Pather Attorneys) offer a once-off flat-fee to draft and register an ANC contract.
Myth 5: Antenuptial Contracts are Unnecessary with Mutual Trust
Some argue that trust should be the only foundation in marriage, making ANCs unnecessary. Trust is undoubtedly essential, but an ANC serves as a safety net that protects both parties from unforeseen circumstances such as business failures, debt liabilities, or changes in financial status.
It provides peace of mind and security, ensuring that both parties’ interests are safeguarded.
Recent Constitutional Court Changes to the Divorce Act
The Constitutional Court recently declared Section 7(3)(a) of the Divorce Act, which provides financial relief to spouses in marriages out of community of property, unconstitutional as it limited claims for redistribution of assets to marriages out of community of property entered into before the Matrimonial Property Act.
This change ensures that spouses, (historically women who were economically disadvantaged by ANCs excluding accrual), can claim redistribution of assets based on their contributions to the marriage.
Antenuptial contracts are a practical tool that can benefit any couple by providing clear guidelines for managing assets and liabilities.
They are not an indication of mistrust but a proactive measure to protect both partners’ interests and ensure financial harmony within the marriage. For more detailed information and legal advice, consulting with a professional attorney is recommended.
Sources to browse through:
- Antenuptial Contracts Explanation
- The Antenuptial Contract – Incorporating or Excluding Accrual
- Family and Divorce Law Guide
- SAFLII: J.R.M v V.V.C and Others (25007/2022) [2024] ZAGPPHC 547 (10 June 2024)
- Pagel Schulenburg
- Constitutional Court Changes the Divorce Act
- D.H.B v C.S.B (CCT293/22) [2024] ZACC 9
- Legal Services South Africa
- VDV Attorneys
- SAFLII
- SA Family Law Guide
Please note that the content provided above is for informational purposes only and should not be considered as legal advice. For comprehensive guidance and to ensure that you are fully compliant with the law, it is advisable to consult with a legal professional. For more detailed information or legal support, please reach out to our team.
