Benefits of an Antenuptial Contract

An Antenuptial contract is an agreement entered into between two parties prior to their marriage and is often referred to as a “prenuptial”.

Upon entering into the agreement, the parties agree to exclude the system of Community of Property from their marriage. There are two forms of Antenuptial contracts, those including Accrual and those excluding Accrual.

If you do not enter into a valid notarized Antenuptial contract prior to your marriage, you are automatically married in Community of Property.

The Antenuptial contract may also include a variety of terms and conditions, usually relating to the division of assets in the event of death or divorce.
During the marriage each spouse will retain his or her separate property and would have complete freedom to deal with that property as he or she chooses.

This would not be the case if the parties were married without an Antenuptial contract, and as such, be married in Community of Property.

There is substantial protection in our law for spouses married according to an Antenuptial contract which protection is not afforded to people married in Community of Property.

Benefits of an Antenuptial Contract

  • If either party is declared insolvent, the other spouse is protected from the insolvent spouse’s creditors;
  • An Antenuptial Contract can be drafted in such a way so as to cater for your unique and individual circumstance.
  • The respective spouses will not be held liable for any debt that the other spouse might have incurred prior to the marriage;
  • Spouses will not be held liable for any debt that the other spouse may incur during the marriage;
  • Assets that, for sentimental or financial reasons, the spouses do not want to form part of a joint estate can remain separate;
  • Spouses will not need to obtain each others consent when dealing with their own property.
  • Antenuptial contracts remove the risk in regard to all the spouses combined assets, should one of the spouses undertake a business venture, allowing for the protection of assets from creditors;
  • Each spouse is able to retain his or her individual financial identity.

Concluding an Antenuptial with Accrual is, by and large, the fairest of the matrimonial regimes.

How to conclude an Antenuptial Contract

A consultation should be arranged with the Notary (an attorney with the additional qualification of a Notary Public) prior to the marriage being solemnized.

Once your instructions as to the contents of the Antenuptial have been taken, the Notary will draft the Antenuptial in accordance with those instructions and will then arrange for you and your spouse to attend at his/her office to sign the Antenuptial in his/her presence.

The original Antenuptial is sent to the Deeds Registry in your and is registered by the Deeds Registry. The Antenuptial must be registered in the Deeds Registry within 3 months of the date of the marriage.

About the author

Andrea Goldman is a Partner at Goldman Schultz Attorneys. For more information contact info@gslaw.co.za or www.gslaw.co.za