The Importance Of An Antenuptial Contract

The Importance Of An Antenuptial Contract

The Importance Of An Antenuptial Contract

With the excitement of planning your big day, an Antenuptial contract setting out which assets you will claim as yours should the happy relationship end is the last thing on your mind.

However, we would strongly recommend that you get one because an antenuptial contract, commonly known as a “prenup” specifies the matrimonial property regime of spouses. It is concluded by two unmarried parties who are legally competent to enter into a marriage with each other.

The couple can choose whichever matrimonial property regime would best suit them. In terms of South Africa law, there are three regimes to choose from:

  1. Marriage in community of property – where all the assets and liabilities are shared jointly and severally between the spouses);
  2. Marriage out of community of property – where all the assets and liabilities of the spouses are separate unless otherwise provided for in the antenuptial contract); and
  3. Marriage out of community of property subject to the accrual system – where each spouse declares their estate’s nominal value at the commencement of the marriage and retains their assets and liabilities (unless expressly excluded). The accrual system only applies if the marriage is dissolved – either by divorce or death. You cannot claim your share of the accrual while you are still married.

Parties in a customary marriage concluded after the Recognition of Customary Marriages Act 120 of 1998, in which a spouse is not a partner in any other customary marriage can also enter into an antenuptial contract. Further, partners in a civil union can also conclude and register a valid antenuptial contract.

Benefits of an antenuptial contract between spouses:

  1. Having an antenuptial contract in place ensures that you and your spouse are seen as separate legal entities, which means you are protected from your spouse’s creditors.
  2. It offers transparency in your relationship by recording the rights, duties and consequences of your marriage.
  3. It prevents unnecessary disputes with your spouse when the relationship ends.
  4. You cannot contract out of either your antenuptial contract or marriage in community of property without an order of court.

The service NS Xulu Inc. offers our valued clients:

  1. An initial one-hour consultation at our offices to explain in detail all questions and address any queries the couple may have.
  2. Drafting of a tailor-made antenuptial contract for the couple.
  3. A follow up consultation with the couple to sign the antenuptial contract before the marriage.
  4. A letter for your marriage officer confirming that an antenuptial contract has been executed.
  5. Lodgement and registration of the antenuptial contract at any Deeds Office within the Republic of South Africa.
  6. Delivery of the original antenuptial contract to the spouses once it has been registered.

For further details, please do not hesitate to contact us.

By: Nompumelelo Xulu

Managing Director

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