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The prohibition against donations between spouses was repealed by the Matrimonial Property Act. Donations between spouses do not form part of the accrual, unless the parties agree otherwise in the contract Donations set out in the antenuptial can serve as proof on the insolvency of one of the spouses that the property in question belongs to the other solvent spouse.
This is of particular advantage to the spouses when the goods in question are attempted to be attached. Where the accrual systems is excluded in terms of the contract, the “breadwinner” spouse can out of consideration of fairness and to acknowledge the other spouse's contribution to the marriage, make donations in favor of that spouse. No donation tax is payable in respect of the value of property which is donated to the spouse of the donor under a duly registered antenuptial/postnuptial contract.
No estate duty is payable on the value of property donated to or for the benefit of the spouse of the donor under a duly registered antenuptial/postnuptial contract.
The parties are free to include any provision in the antenuptial contract, as long as it is not against nature, reason, morality, public policy or prohibited by law. Clauses of this nature will be null and void.
Clauses that are regarded as contra bonis mores and which may not be included in the antenuptial contract:
1. An undertaking by a spouse to change religion.
2. A clause stating that marital disputes must be referred to arbitration.
3. A clause recreating the husband’s marital power.
4. A clause stating that the parties will not live together as man and wife after the marriage.
5. A clause permitting the parties to commit adultery.
6. A clause where one of the parties undertakes to resign after marriage.
Herewith are some common clauses that may be entered into an antenuptial contract.
The parties must have the appropriate capacity to enter into a valid marriage. For marriages under the Marriage Act 1961, minors between the age of puberty and the age of majority must have the consent of both parents or a guardian. If the minor has only one parent living, only that parent's consent is required. Where the minor has a guardian, the guardian's consent is needed. If the minor has no parent or guardian, permission must be obtained from the Commissioner of Child Welfare. Additional consent is required from the Minister of Home Affairs if the male minor is under the age of 18 and the female is under the age of 15. For marriages and civil partnerships under the Civil Union Act, the age of consent is 18.
In terms of common law, insane persons cannot enter into a valid marriage. This is due to their lack of understanding of the nature of the juristic act and the obligations that marriage creates. Where a person marries whilst they are already validly married to someone else, the second marriage will be bigamous and therefore void. Bigamy is a criminal offence. Both parties must have the intention to conclude a marriage as understood by the law.
This is evidenced by their declarations to the marriage officer during the marriage ceremony. Consensus will be excluded by a material mistake as to the spouse's identity or the nature of the juristic act, duress or undue influence, or prenuptial stuprum. The law also prohibits marriage between certain blood relations (relationship of consanguinity) and certain persons related through marriage (relationship of affinity). Marriages within these prohibited degrees of relationship are not valid and are in fact, void.
The formal requirements for entering a valid marriage are contained in the Marriage Act (25 of 1961) and the Civil Union Act (17 of 2006). A duly appointed marriage officer must solemnise the marriage, each party must produce an identity document or an affidavit in the prescribed form, and a minor must produce written consent of their parent(s) or guardian. The marriage officer must solemnise the marriage according to the prescribed formula in the presence of the two parties to the marriage and in the presence of two witnesses. All marriages must be registered. If the prescribed formalities are not complied with, the marriage is void marriage.
Succession clauses in an antenuptial contract are an exception to the rule that agreements relating to inheritance are unenforceable. The parties may make provision for the succession of the survivor of them to the estate (or part thereof) of the first dying spouse. Such a provision cannot be revoked unilaterally in a subsequent will without the consent of the benefiting party. Examples "The parties declare that on the death of either of them, the survivor shall be entitled to the whole estate of the first dying."
"The parties declare that upon the death of the first death of them, all assets belonging to such a party shall pass to the surviving spouse." The parties may also insert other testamentary provisions in the antenuptial contract, for example, revocation of previous wills, the appointment of executors and heirs, the establishment of a mortis causa trust etc. See the model answer to Notarial Practice Examination - October 2002, Question 3, for an example of an antenuptial contract incorporating other testamentary provisions. It is also possible for a third person to bequeath his or her property to one or both of the spouses in the antenuptial contract. Just remember that the third person must then be joined as a party to the contract, and he or she must also sign the contract in the presence of a notary.
The third-party cannot revoke such a bequest without the consent of the benefiting spouse(s). Succession clauses in an antenuptial contract are an exception to the general rule that agreements regarding inheritance are not legally enforceable. Through such a clause, the spouses can agree that the survivor of them will be entitled to the estate, or part thereof, of the first dying spouse.
This cannot be changed unilaterally by either spouse in a subsequent will without the consent of the other. Furthermore, the antenuptial contract can also include other testamentary provisions such as the revocation of previous wills, the appointment of executors and heirs, the establishment of a mortis causa trust, etc.
It is also possible for a third party to bequeath their property to one or both spouses in the antenuptial contract. In such a case, the third person must be a party to the contract and sign the contract in the presence of a notary. The third-party cannot then revoke the bequest without the consent of the benefiting spouse(s).
Section 6(1) of Act 88 of 1984 provides that parties may declare the net commencement values of their respective estates within six months of the commencement of the marriage. If the parties did not state the net commencement values of their respective estates in the antenuptial contract, they may execute a statement in accordance with this section. The statement is not required to be lodged and registered at the deeds office and is instead held by the notary in their protocol. High nett-worth individuals usually do not want to declare their nett asset worth in a public document.
According to Louwrens Koen Attorneys, clauses in a marriage contract (ANC) may be deemed unenforceable if they are against public policy, against the good morals of the public, unreasonable, prohibited by law, or aim to take over the powers of the court. These clauses will be null and void.
Examples of unreasonable clauses in a marriage contract include:
Clauses against public policy include:
Clause to deter infidelity: A clause in an ANC that aims to prevent infidelity by a spouse is enforceable if it seeks to preserve the marriage by discouraging extramarital affairs. For example, if a clause states that the husband will pay the wife a fixed property or cash amount if it is proven that he caused a future divorce through an extramarital affair, the court may enforce this clause.
Antenuptial Contract Brochure
Antenuptial Contracts Explained
Matrimonial Property Act 88 of 1984
Down Matrimonial Property Act PDF
Recognition of Customary Marriages Act
To makeprovision for the recognition of customary marriages; to specify the requirements for a valid customary marriage; to regulate the registration of customary marriages; to provide for the equal status and capacity of spouses in customary marriages; to regulate the proprietary consequences of customary marriages and the capacity of spouses of such marriages; to regulate the dissolution of customary marriages; to provide for the making of regulations; to repeal certain provisions of certain laws; and to provide for matters connected therewith.
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Louwrens Koen Attorneys have assisted thousands of couples to register an antenuptial contract. We pride ourselves in being very approachable. As this will affect your legal status and is therefore an very important matter do not hesitate to contact with any questions you might have.
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Antenuptial contracts (ANCs) allow couples to marry out of community of property. This is a popular option for those who want to protect their assets and finances before and during their marriage. With an ANC, each spouse retains their right to contract with third parties without the other's consent and is protected from the creditors of the other spouse.
When marrying out of community of property, there are two options to consider regarding the ANC: with or without accrual. Marrying without accrual means that each spouse keeps their own property and liabilities acquired prior to and during the marriage. With accrual, each spouse is entitled to a fair share of the estate in case of a divorce. The default option is marrying with accrual, which is automatically included if the accrual system is not excluded in the ANC.
A recent court case (RD v TD 2014 (4) SA 200 (GP)) highlights potential legal loopholes for couples who choose to marry with an ANC without accrual and later engage in a joint business venture. The court ruled that these spouses should be treated as business partners and the net benefits from the partnership would be divided between them. It is important for couples to have these difficult discussions and understand the consequences of their marriage regime before entering into it, to protect themselves and their future spouse in the event of a divorce or death.
For expert advice on matrimonial systems and related topics, please contact Louwrens Koen Attorneys.
Louwrens Koen Attorneys provides expert guidance on Antenuptial Contracts (ANCs) in South Africa. Family Law,
When it comes to Antenuptial Contracts (ANCs), it is important to understand their significance and what they entail. This document may be just as important as your last will and testament in many cases. In this article, we aim to provide an overview of an ANC and its implications for those who choose to sign it in South Africa. An ANC is a contract between future spouses that regulates several aspects of their marriage, including:
Under South African law, an ANC determines the marriage regime under which the couple will fall into. There are three types of regimes:
It is crucial to have a full understanding of the implications of each regime before signing an ANC. It is also important to note that an ANC is a contract, and both parties must fully understand and agree to its terms for it to be considered valid. For any questions regarding the drafting of an ANC, please contact Louwrens Koen Attorneys.
Antenuptial contracts (ANCs) determine the financial status of a marriage - whether it will be in community of property or out of community of property, with or without the accrual system.
It must be signed by the marrying couple, two witnesses, and a notary public, then registered in the Deeds Registries office within the required timeframe.
The accrual system calculates how much the spouse with the larger estate must pay the spouse with the smaller estate if the marriage ends through death or divorce. It only takes into account property acquired during the marriage. Without the accrual system, each spouse keeps their own estate, consisting of property and debts acquired prior to and during the marriage, with nothing shared between them. The accrual system is based on the idea that each spouse should take out the value of assets they brought into the marriage and share what they built together during the marriage. However, it only applies if the marriage ends and cannot be claimed while the couple is still married.
Whether to include the accrual system in the ANC is a decision left to the couple, but it is crucial that they consult with a neutral and professional lawyer who can advise and mediate the agreement.
Emotions and personal biases can affect the outcome, especially if one spouse has significantly more assets than the other. Please note that this article is for informational purposes only and should not be used or relied upon as legal or professional advice.
Contact Louwrens Koen Attorneys for specific and detailed advice.