ANC – And no, it is not a National Party.
Most couples get all wrapped up in the excitement of their wedding that they leave their antenuptial contract (ANC) to the last minute. Despite being one of the most important documents that a young couple will ever conclude, it doesn’t seem to get as much attention as the dress, flowers, venue and cake do. I find that in sharing the queries raised by previous clients, often assists future clients in understanding the concept of an ANC,
So here’s a few of my favourite questions I get asked:
- Isn’t it the same as a Prenuptial Agreement?
Not quite. A prenuptial agreement is an American concept that essentially protects what you have prior to getting married. Whereas there are two types of ANC’s, without accrual and with accrual. Without accrual keeps the parties assets completely separated from each other: “what is yours is yours, and what is mine is mine”. With accrual separates what assets you have going into the marriage and then deducts this from your nett value at the end of your marriage. The difference of what is left is then looked at in respect of both parties, and should there be any difference the difference then gets shared with the other party.
- So what if I didn’t get an ANC before getting married, can I do it quickly now?
It is possible, but it is not easy or cheap. A formal High Court Application is required. Adverts need to be posted in newspapers and the government gazette setting out your intention to change your marital regime. The process can take as long as 3-6 months provided there is no opposition.
- If we do not have an ANC, how are we married?
Automatically, a couple’s marriage is registered as in community of property unless an ANC is concluded prior to getting married.
- Which ANC protects me the most from my partners creditors?
Both types of ANC protect you from your spouse’s creditors – provided you did not conclude a surety agreement. This is because your estates are seen as completely separate. Its only of you are married in community pf property that your spouse’s creditors could claim debts from you.
- Can I include terms and conditions on my marriage in my ANC – i.e. can I stipulate that my wife will not gain more than 10 kg’s?
No, an ANC cannot contain any terms that would be seen as unlawful or against public policy.
It is never a comfortable topic: planning for your divorce at the point that you are getting married. But it is actually the kindest thing that you can do for your partner. It ensures that you “end” on terms that you were happy with at the “beginning”.
PLEASE NOTE THAT WE STRONGLY RECOMMEND THAT YOU CONTACT US DIRECTLY FOR A CONSULTATION FOR SPECIFIC ASSISTANCE AND ADVICE REGARDING YOUR SPECIFIC MATTER AS THE INFORMATION CONTAINED IN THIS ARTICLE IS INTENDED AS A GENERAL GUIDELINE AS TO FAMILY LAW IN GENERAL AND DOES NOT CONSTITUTE LEGAL ADVICE.
The above article was written by Tania Abbotts, a Family Law specialist at Hammond Pole Attorneys.