ANTENUPTIAL CONTRACTS ?
‘’In sickness and in health…’till death do us part…’’
These two sentences are part of the marriage vows, but what happens with regards to finances when a spouse dies and… what happens when it`s not till death do us part – but DIVORCE do us part?
In terms of the Matrimonial Property Act of 1984 two matrimonial property regimes exist in South Africa, namely:
- In Community of Property
- Out of Community of property – with two choices (1) with accrual or (2) without accrual system.
For the latter system, where the spouses retain their legal identity (and independence) an Antenuptial Contract is necessary – this document can only be drafted by a Notary Public and must be registered in the Deeds Office, and must be concluded before marriage!
GENERAL ADVANTAGES OF ENTERING INTO AN ANTENUPTIAL CONTRACT:
- It offers financial protection to the parties’ own, separate assets and neither party has to ask the other party’s permission to deal with his or her assets.
- Each party retains complete autonomy and control over his or her own assets – those which they have at the start of the marriage and those which they gather during the course of the marriage.
- The parties do not share in one another’s profits/assets (except for accrual sharing, see below) nor are they responsible for each other’s liabilities (debts)/losses. This provides protection against each other’s creditors claims.
- It provides protection in the event that one party is declared insolvent.
- Any claim which a party may have against his or her spouse in terms of the Antenuptial Contract, comes into effect on the termination of the parties’ marriage regardless of whether it is by death or divorce.
