An Antenuptial contractis a marriage contract which must be signed before the onset of a marriage/civil union. Much thought needs to be given to the signing of this document as it may be the most important document you’ve ever signed in your whole life!
What is an Antenuptial Contract?
An antenuptial contract is a contract signed by parties prior to marriage or a civil union with the purpose of regulating what will happen to all assets and liabilities owned by the parties not only during the marriage but also on death or divorce. The parties to an antenuptial contract are the prospective spouses or partners in a civil union.
An Antenuptial Contract must be executed before a notary public, who is a qualified attorney with additional specialist qualifications, and registered in the Deeds Office. As a notary public, Riva is qualified and adept in helping you make sure that your Antenuptial contract is tailor made to your specific circumstances.
Why is an Antenuptial Contract important?
If an Antenuptial contract is not signed before a wedding/ civil union the couple is married in community of property. As a single legal entity couples will be joint owners of everything within the joint estate, and will both be liable for any debt incurred within the estate, even if it is only the one spouse that incurs the debt. Spouses are also required to provide written consent for the selling of investments and assets, for entering into credit agreements, as well as for binding themselves as surety to any agreement.
P.S. Insolvency on the part of either spouse will mean that creditors are entitled to the joint estate, as well as property owned by the solvent party!
Couples are married out of community of property if they sign an Antenuptial contractas part of their civil union/marriage. This means that the spouses own their property independently of one another and neither spouse is liable for the debt incurred by the other spouse.
There are two types of Antenuptial contracts that you can sign: An Antenuptial contract which includes the application of the accrual system or an Antenuptial contract which excludes the application of the accrual system. These contracts are completely different: In an Antenuptial contract which excludes the application of the accrual system, neither spouse ever has claim to the assets owned by the other party at all. In an Antenuptial contract which includes the application of the accrual system, there is a form of asset sharing on dissolution of the marriage by death of one of the parties or divorce. The latter is generally regarded as the most fair marriage system asupon dissolution of the marriage, the party whose estate has shown a smaller accrual is entitled to half the difference between the accruals in the two estates.
What if you didn’t sign an Antenuptial contract before you were married/ entered into a civil union?
No need to panic, the Matrimonial Property Act provides for the registration of a post nuptial contract, in terms of which the parties are able to change their matrimonial property regime however be aware that the process is lengthy and fairly expensive.
Why Choose Riva Lange?
Those entering into a civil union/marriage must carefully consider their options before signing their marriage contract. My experience as a divorce attorney gives me a unique insight into the type of issues which can arise in cases of divorce and the implications of the chosen agreement. And whilst it is anathema to most people to contemplate divorce whilst planning a wedding, the Antenuptial contract is also applied on the death of one of the spouses. The value of having a clear, mutually understood and agreed marriage contract cannot be underestimated.