Divorce can sometimes be a long, wearisome and emotionally draining process. This is mainly because it usually is a result of frustrations, feelings of betrayal, disappointments and anger between the spouses involved. With vengeance at the centre of the contestation, some spouses will be seeking to walk away with as much as they can in a show of supposed triumph.

The above is in stark contrast to the time when the romance began. With romance and bliss abound, the wedding ceremony ushers hope for a happy-ever-after story. At this point, not many couples will be given in to weigh the possibility of things going sour one day. It is being pessimistic right? Unfortunately, this is the reality of life, the reason why the insurance business thrives.

Antenuptial Contracts (ANC) are the most secure, legally recognised and enforceable mechanisms to safeguard the matrimonial property interests of spouses in a marriage relationship. Their main purpose is to forestall long and tedious divorce processes amongst other instances, for example, one of the couples going insolvent.

This article shares insights into what Antenuptial Contracts are, where they apply, the purpose they serve and why it is important to have one in place during a marriage.

  1. What is an Antenuptial Contract?

An Antenuptial Contract is an agreement concluded between parties to a marriage relationship, to deviate from the common law default matrimonial property system of Community of Property (existence of a joint estate in indivisible shares). The Antenuptial Contract offers an opportunity for spouses to exclude certain assets and liabilities from joint responsibility and sharing.

  1. Is an Antenuptial Contract the same as a Prenuptial Contract?

They are the same and serve the same purpose. The term Prenuptial Contract is normally used in the American jurisdiction.

  1. Is an Antenuptial Contract applicable in all matrimonial property systems?

No. It is only applicable where spouses prefer to deviate from the default Community of Property matrimonial property system. Where couples prefer to conclude a marriage in Community of Property, there is absolutely no need for an Antenuptial Contract. Therefore, it is only applicable in marriages Out of Community of Property, whether same is with or without the Accrual system.

  1. Which legislation governs matrimonial property systems in South Africa?

The Matrimonial Property Systems Act 88 of 1984 governs matrimonial property systems in South Africa. The matrimonial property regimes recognised are:

  • In Community of Property where spouses own assets and liabilities in joint indivisible shares as was held in Mazibuko vs National Director of Public Prosecutions 2009 (6) SA 479 (SCA), and De Wet vs Jurgens 1970 (3) SA 38 (A);
  • Out of Community of Property with Accrual where spouses retain their separate estates but only share the accumulative difference of the estate that enjoyed the most growth; and
  • Out of Community without Accrual where spouses retain all their assets and their estates are exclusively separate from the other.
  1. At what point is an Antenuptial Contract executed?

An Antenuptial Contract needs to be signed by both parties and attested to by a notary before the conclusion of the marriage and registered at the Deeds Office within 3 months of the marriage. A qualified notary has to stamp the antenuptial contract and place a seal on it. Without this seal, the antenuptial contract will be invalid.

  1. If spouses did not sign an Antenuptial Contract before the marriage, can they execute an Antenuptial Contract during the marriage?

Yes. The law makes provision for couples who failed to register an antenuptial agreement before marriage to apply for the registration of a postnuptial contract.

This is done by way of a High Court application as per section 21 (1) of the Matrimonial Property Systems Act 88 of 1984. In the case of Lourens et Uxor 1986(2) SA 291 (C), the Court set out considerations when considering an application for the alteration of the matrimonial property system. These include the presence of sound reasons for the proposed alteration, whether ample notice was given to the creditors of both spouses about the proposed change and, whether the Court is satisfied that there would be no prejudice to any other party if a postnuptial contract is registered.

  1. How do I start the process of concluding an Antenuptial Contract?

The first step is to approach an attorney who can assist with the drafting and execution of an Antenuptial Contract. The attorney will explain the different options as well as the legal repercussions of same to ensure that parties make an informed decision.

After the parties elect whether the antenuptial contract should include or exclude the accrual system, the necessary documents will be drafted and executed by the attorney and notary.

At Burger Huyser Attorneys we assist with the drafting and execution of Antenuptial Contracts, ensuring that couples have peace of mind regarding the protection of their assets. If spouses wish to alter their matrimonial property system after concluding the marriage, we also assist with the High Court application. Our attorneys and notaries are capable, astute, diligent and extensively experienced in the drafting and execution of Antenuptial Contracts.

DISCLAIMER: Information provided in this article does not, and is not intended to constitute legal advice. READ MORE