ANTENUPTIAL AGREEMENT – What is it?
An antenuptial agreement is a contract signed before marriage by parties who intend to marry each other out of community of property. In other words, each person wants to retain ownership of his or her own assets as opposed to pooling the assets to form one communal estate. If no such agreement is signed the husband and wife will automatically be married in community of property.
The decision to enter into an antenuptial contract may have serious consequences. Both during the course of the marriage and in the event of its dissolution (whether on death or divorce) and it is therefor advisable to obtain proper advice before entering into a marriage.
Couples may enter into one of two types of Antenuptial agreements (“ANC”):
– an ANC that excludes community of property, community of profit and loss, and the accrual system; or
– an ANC that excludes community of property and community of profit and loss, but includes the accrual system.
The ‘accrual’ is the extent to which the husband and wife have become richer by the end of the marriage, in other words, the amount by which the spouses’ joint wealth has increased over the period of the marriage. When married according to the accrual system, each spouse acquires a certain right to the other’s property on divorce. Neither system is superior to the other. The marital property regime chosen (i.e. with or without accrual) must suit the couple’s relationship dynamic and specific needs. Note that the ANC is a normal contract, so all the rules as to fraud, duress and mistake apply.
Once the ANC has been drafted, both parties and the notary public must sign it in duplicate prior to the marriage. The ANC will then be forwarded to the deeds office in the area where the parties reside to be registered. Registration must be affected within three months of the date it was signed by the notary public. Apart from the usual fees, a prescribed fee is payable to the deeds office upon registration of the contract.
We are situated on the East Rand of Johannesburg (JHB) in close proximity to the airport. The following towns are nearby: Boksburg, Benoni, Kempton Park, Germiston, Edenvale, Bedfordview, Springs, Brakpan, Kempton Park. Contact us today for advice on whether you should conclude an antenuptial agreement.
Ask for Tania Abbotts.