AN ANTENUPTIAL contract (ANC) is a written agreement between a couple intending to get married, which agreement sets out the terms and conditions of their intended marriage. In the antenuptial contract, the couple can decide whether they want accrual to apply to their marriage or not, can make donations to each other, indicate what should happen to their assets in the unfortunate event of death, insolvency or divorce. There is no limitation on what can be included in an antenuptial contract other than that it should not be immoral or illegal.
When and how an antenuptial contract is entered into
By its nature an ANC is entered into before the couple marries. The couple can have the contract drafted by an attorney, however for the antenuptial contract to be valid and recognised as such, it has to be signed before a Notary and registered at the Deeds Office within a period of three months after that. The attorney handling the antenuptial contract has the duty to have it registered at the Deeds office.
However, it is important for the couple to ensure that this is actually done because if for some reason (and it has happened) the contract is not registered within the required period, their marriage would be regarded as a marriage in community of property and they would have to approach the court to have it changed to one out of community of property, which could be a tedious exercise as they have to convince the court that they actually intended to get married out of community of property, that there was a good reason for the failure to register the antenuptial contract and that they made the application to court within a reasonable period after they discovered that the contract was not registered.
Advantages of an ante nuptial contract
The antenuptial contract has a number of advantages:
- Communication – the process of drafting the antenuptial contract affords the couple the opportunity to communicate their needs and desires as well as to reach agreement on how they would conduct their marriage. Right from the beginning, each spouse knows what the deal is, what to expect from the other spouse and what not to expect – so in the event of challenges, or a divorce, there is less (if no) hassles as matters would have been set out right from the beginning. Done properly, it would help avoid a lot of problems couples face in marriage, particularly with regards to finances.
- Exclusion of community of property – for people in business it might be the best way of protecting their families from dangers of insolvency.
- No responsibility for another’s debts – a couple married out of community of property is not personally responsible for the debts each incurred before they got married.
- Administration of own estate – there is no need to secure the consent of the other spouse or to sign surety for their transactions An antenuptial contract can also come in handy in the unfortunate event of divorce or disputes occurring after a spouse’s death (if it sets out clearly how property should be distributed) saving on litigation costs.
Disadvantages of an antenuptial contract —Entering into an antenuptial contract would have the following disadvantages:
- End of marriage – a spouse with a smaller estate might be disadvantaged at the end of the marriage if no provision was made for their care in the contract itself.
- Challenges with execution – if not properly executed, the contract may be declared invalid and the marriage between the couple would most probably be declared in community of property should there be a dispute.
- Changing the antenuptial contract – changing the contents of the antenuptial contract would require court intervention. Tips to ensure that their antenuptial contract is valid
- It is important for a couple to consult an attorney a few months before the wedding as this will give them enough time to reflect on their needs as individuals and as a couple, seek out legal advice and make a decision regarding what they want in the marriage and more importantly how to protect themselves and their loved ones. To avoid problems when the marriage comes to an end, the couple should make provision for both death and divorce in the antenuptial contract – just to ensure that if there are problems later on, they are both covered. It is easier to come to an agreement whilst a couple is still together and in love than when they are divorcing or one of them is dead already.
- The couple has to make sure that their contract is not only attested to by a Notary but that it is registered within three months of its execution at the Deeds Office.
- NOTE: We will be discussing marriage out of community of property next week.
- Keneilwe Mabapa is an Attorney who is passionate about helping people understand, embrace and use the provisions of the law to their advantage. She is also the author of before, during and after the wedding, a book that addresses the legal implications of marriage. Contact details: 015 298 8126 /084 805 9110, firstname.lastname@example.org and www.keneilwemabapainc. com