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We have assisted thousands of couples with their antenuptial contracts.

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Louwrens Koen Attorneys have already assisted thousands of couples with their Antenuptial Contract registration needs.

Using our efficient online application form we have assisted thousands of couples. We pride ourselves in being approachable. Do not hesitate to contact us with your questions or schedule a free consultation. Louwrens Koen Attorneys


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  • Louwrens Koen Attorneys 417 Kirkness Street, Sunnyside, Pretoria, South Africa

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.


Why you should register an antenuptial contract.


Why you should register an antenuptial contract.
When two persons that are about to be married enter into an Antenuptial Contract their marriage will be out of community of property. The most common consequences of a marriage out of community of property are as follows:
  • The parties will not be held liable for the debts of a spouse that such spouse may have incurred prior to the marriage; 
  • The parties will not be held liable for the debts of a spouse that such spouse may incur during the marriage; 
  • Assets may be protected, particularly if one of the spouses has a business in his or her own name. The parties may decide to register assets such as their residential property in the name of only one spouse, being the spouse with the lowest risk profile. The assets of each spouse will also be safe in the event that the other spouse is sequestrated; 
  • One or both spouses may have assets prior to the marriage that they want to exclude from the joint estate; 
  • Spouses may enter into commercial transactions without the consent of their spouse;
  • Each spouse retains control over his or her assets, builds his or her own estate and is responsible for his or her own debts.
 

Your Marital Regime Choices


You must choose one before getting married. Your choice will have financial and legal consequences. You are therefore urged to carefully consider your options. If you still have questions message us or book a free 20 min consultation with our attorney. Get Started - Explore your options.

With Accrual - Marriage out of community of property with implementation of the accrual system. Most Popular.

The accrual system is applicable to all marriages out of community of property, unless the prospective spouses specifically exclude the accrual system in their contract. 'Accrual' means increase and the accrual system is a form of sharing the assets that are built up during the marriage.

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Without Accrual - Marriage Out of Community of Property without implementation of the accrual system.

Without Accrual the parties specifically declare that the Accrual system as set out in the Matrimonial Property Act will not be applicable to their marriage and will specifically be excluded.

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In Community - Marriage in Community of Property

The most prejudicial consequence of marrying in community of property, is that assets in the joint estate will always be vulnerable to the claims of creditors of both spouses. This marital regime is definitely not recommended for spouses running their own independent businesses as premarital and post-marital liabilities will become communal, thereby endangering the good standing of not just one, but both spouses

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F.A.Q - Antenuptial Contracts


What is an Antenuptial Contract?

A pre-nuptial or ante-nuptial contract is an agreement an unmarried couple enters into before they get married. I deals with the proprietary aspects of their marriage and other related issues. For example, it would deal with what matrimonial property regime applies to the marriage. For example, whether they will be be married “In Community of Property and Profit and Loss”, or “Our of Community of Property and Loss”with our without the Accrual Regime. In an Ante-nuptial contract mention can also be made of what assets are excluded from the joint estate etc. Below are some questions that people have  in relation to to ante-nuptial contracts.

The Antenuptial Contract is executed, or signed before a Notary Public who then registers the document at the office of the Registrar of Deeds. In this way, the information in the Ante-Nuptial Contract becomes public.


How much does it cost to get an Antenuptial Contract?

We charge an all inclusive fee of R1450 to draft and register an antenuptial contract. No hidden fees.

Do we have to wait for registration of the antenuptial contract before we get married?

No. On receipt of the signed antenuptial contract or power of attorney our notary public will issue a certificate to hand to the marriage officer.

Why should we consider an antenuptial contract?

Important reasons to sign a prenuptial agreement before walking down the aisle.
  • You are Marrying Someone with Significant Debt.
  • You Wish to Protect Your Assets.
  • You Want to Ensure Financial Security for Both Parties.
  • You Want to Protect Your Business.





How do we get our contract after registration?

We ill notify you when we have received the orinal antenuptial contract from the Registrar of Deeds. You can either pick up the document in perso from our offices or arrange with us to Postnet or Courier the document. We will charge courier or postnet fees if applicable.

How do we get our contract after registration?

Keep in mind that everyone have circumstances. Careful consideration should be given before deciding on the most suitable option. The laws that govern marriage and matrimonial property – the belongings of the spouses that form part of the marriage – are numerous and complex. That being said, our courts are very protective of the sanctity of marriage and the rights of the spouses. With international travel and communication becoming easier, and globalisation resulting in many cross-border relationships, questions about how marriages will operate in multinational settings from a practical and legal perspective are increasingly common.

How do I get to your offices?

We are located within the Northern Pavilion of Loftus Versveld Stadium. Us the same entrance as the Loftuspark shopping centre. Either park on top or use the basement parking facilities. Free safe parking for 2 hours. Enter gate 12 (Northern Pavilion). Click here for a link to google maps.

Why should we use Louwrens Koen Attorneys to register our Antenuptial contract?

Louwrens Koen Attorneys have assisted thousands of couples over the years to register an Antentenuptial Contract. Being a long established provider of this specialised service in South-Africa shows our commitment to our clients. We believe this commitment has resulted in our longevity and success

Costs - R1450


Free 20 min Consultation - Antenuptial Contract

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  • When you have gone through all the provided articles and frequently asked questions and still have questions. Or you have unique circumstances you wish to discuss in person with an specialist attorney. Sometimes the parties prefer to sign the agreement before the Notary Public in person. Only available if you have already registered and paid for the registration of an antenuptial contract.

Your Marital Regime Choices


You must choose one before getting married. Your choice will have financial and legal consequences. You are therefore urged to carefully consider your options. If you still have questions message us or book a free 20 min consultation with our attorney. Get Started - Explore your options.

With Accrual - Marriage out of community of property with implementation of the accrual system. Most Popular.

This is a generic article you can use for adding article content / subjects on your website.

Read More  

Without Accrual - Marriage Out of Community of Property without implementation of the accrual system.

This is a generic article you can use for adding article content / subjects on your website.

Read More  

In Community - Marriage in Community of Property

This is a generic article you can use for adding article content / subjects on your website.

Read More  

Comparison Table Antenuptial Contracts


Compare your matrimonial property choices.


Marriage in community of property Marriage out of community of property with the accrual system Marriage out of community of property without the accrual system
Before Marriage No Antenuptial ContractAntenuptial Contract entered into before marriage is solemnisedAntenuptial Contract entered into before marriage is solemnised
On date of Marriage Both spouses estates join into one joint estate which belongs to both spouse in equal undivided sharesTwo separate estates. Each spouse may deal with his/her estate as he/she wishes.Two separate estates. Each spouse may deal with his/her estate as he/she wishes.
During the Marriage Joint estate comprises assets and liabilities that belonged to either spouse at the date of and during the marriage, excluding the following: •Property donated or bequeathed subject to the condition that it shall be excluded from a community of property marriage; •Certain life insurance policies;
  • Delictual liabilities.
-Husband and wife have equal powers with regard to disposal of assets, contracting of debts and management of the joint estate. Can perform any juristic act with regard to joint estate without consent of the other spouse, except acts set out in Sections 15{2) and 15(3) of the Matrimonial Property Act.
ASSETS EXCLUDED:
  • Assets excluded in terms of the antenuptial contract;
• Delictual damages for non-patrimonial loss; • Inheritances, legacies and donations; • Donations between spouses • Certain life policies.
Two separate estates. Each spouse may deal with his/her estate as he/she wishes. Any increase or decrease benefits or prejudices the relevant spouse only. Accrual system expressly excluded in the antenuptial contract.
End of marriage on death or divorce The estate is halved and each spouse is entitled to an undivided half share.Accrual = Difference between the net value at commencement (escalated) and the net value at dissolution of the marriage. -The net value at commencement is declared in the antenuptial contract / separate statement. If no net value stated in contract it shall be deemed to be NIL.Each spouse retains his/her own assets and own accrual – no sharing unless Antenuptial contract compels donations or court orders transfer of assets. An financially dependant party can still claim maintenance.
Advantages Promotes legal and economic equality.Both parties share in the wealth accumulated during marriage Each party is free to conduct his/her own independent financial affairs. • If party goes into debt, it cannot be claimed from the estate of the other party. • In the case of divorce, any assets made whilst married are shared – it doesn’t matter who acquired them; each partner’s current net asset value is calculated by subtracting all liabilities from assets • The antenuptial contract can be tailored to suit the parties needs • It protects the partner who remains at home to care for the familyIf one of the parties becomes insolvent, creditors may not attach the assets of the other • Each of the parties is still legally obliged to offer financial support to one another should one of the parties are unable to support himself/herself. • Full contractual freedom • In second marriages, marriages where the parties already have children , where both parties have already amassed a sizeable estate or in so called marriages of convenience it simplifies matters drastically.
Disadvantages If one of the parties goes into debt, creditors have claim to all of both parties assets • If one of the parties has his/her own business and becomes insolvent, both parties assets becomes fodder for debt collectors • There is no financial or even contractual independence, certain transactions need the written or oral consent of both parties • If one partner should die, the estate of both the deceased and surviving partner will be wound up jointly – not great for the surviving partner who will find themselves in legal limbo possibly without access to funds in addition to the trauma of losing a loved one.Need to keep accurate accounting records.In the case of death or divorce, a spouse is entitled only to those assets accrued in his/her name.
 Should one of the spouses stay at home to raise children, that partner would not be entitled to the assets accumulated by the other partner.
Best suited forYounger couples where there is no business risk from either of the spouses. Outdated. Not advisable.Younger couples. Especially where one of the spouses has his/her own business.Second marriages, marriages where the parties already have children, where both parties have already amassed a sizeable estate or in so called marriages of convenience.

Apply Online Antenuptial Contract


Complete the online form as thoroughly as possible and submit. We will supply you with an pro forma contract within 24 hours. This document can be used as a discussion document and can be changed by us to suit your needs. Once satisfied sign the contract and return to us by hand, Postnet or Courier.

Antenuptial Contracts South-Africa Explained


Why do I need an Antenuptial Contract? 

Antenuptial Contract is also known as a Prenuptial Contract or 'Prenup'. Is a contract entered into by two people, prior to their marriage, to stipulate the terms and conditions for the exclusion of community of property between them. This will ensure that one person’s creditors cannot hold the other person liable for repayment of debt – unlike when people marry without an Antenuptial Contract, i.e. ‘in community of property’.   The Antenuptial Contract may also include almost any terms or conditions as long as they are not illegal, immoral or contrary to public policy. Most of these terms and conditions relate to the division of assets should the marriage be dissolved either because of death or divorce. During the marriage each spouse will retain his or her separate property and would have complete freedom to deal with that property as he or she chooses. 

This would not be the case if the parties were married without an Antenuptial Contract, i.e. ‘in community of property’.   Should one of the parties ever be declared bankrupt, the other party’s property will be protected from the insolvent party’s creditors, subject to the provisions of Section 21 of the Insolvency Act. 

There are various reasons why couples should enter into an Antenuptial Contract prior to their marriage. 

The 7 most common reasons are: 

  • An Antenuptial Contract can be drawn up to give you the same advantages of being married in community of property, without the disadvantage of being held liable for your spouse’s debt;
  • The one party do not want to be held liable for any debt that the other party might have incurred prior to the marriage;
  • The one party do not want to be held liable for any debt that the other party may incur during the marriage. Each party will be responsible for his or her own debt;
  • There might be certain assets at the time of the marriage that, for sentimental or financial reasons, one of the parties do not want to become part of a joint estate;
  • One party wants to be able to enter into transactions with regards to his or her own assets, without having to obtain the consent of the other party each time. With an Antenuptial Contract each party will retain control of his or her own property and will build up his or her own estate during the marriage; 
  • They do not want to risk all their combined assets if one of them undertakes a business venture. They want to protect assets such as a house or  investments from creditors, particularly if one of the parties has his or her own business or income that vary, whilst the other party earns a stable income; 
  • Each party wants to retain his or her individual financial identity independently from that of the other party.  Since the implementation of the accrual system there remains absolutely no sound reason why couples should still get married without an Antenuptial Contract, i.e. 'in community of property'. This mostly occurs due to ignorance or haste, eventually resulting in an expensive and difficult High Court application to rectify the mistake. 


South African Marital Regimes In terms of South African Law, there are basically only two marital regimes: 

  • In community of property; or
  • Out of community of property.  

If you do not enter into an Antenuptial Contract prior to your marriage, you will automatically be married in community of property in terms of South African Law. Both parties’ individual estates will be combined into one jointly owned estate by the marriage. This means that all pre-marital assets, debt and liabilities are all pooled into one estate once the marriage is concluded, from which point onward, only one jointly owned estate will exist. 

Both parties will be jointly liable for debt-repayment towards their combined creditors, irrespective whom incurred the debt.  This means that if one of the parties behaves in a irresponsible financial way, the other party will also suffer because of it.To change your marital regime after you've gotten married will be a time consuming and very expensive process. Also note that such a change will not prejudice the existing creditors' rights. It would involve a joint application by both parties to the relevant High Court for consent to effect the change. The application and preceding process involves a lot of formalities. 

Only if and when the High Court grants the consent, will you be permitted to proceed to change your marital regime. As your choice of a marital regime will determine your proprietary rights during your marriage, as well as when it is dissolved - either by death or divorce it is imperative that you choose prior to your marriage whether you want to get married 'in community of property' or 'out of community of property'.  

You also need to understand the implications of your choices, which can be depicted as follows:     'In community of property' means that everything each party had prior to the marriage, assets as well as debts, are pooled into one single jointly owned estate, once the parties marry. From this point onwards everything they earn or buy will also form part of this jointly owned estate. This also pertains to any debt or liabilities either one of them incur during the marriage. Should one spouse be reckless with his or her financial affairs, it will adversely affect the other spouse, as they are both totally liable for the debts of their jointly owned estate. As both parties are joint owners of all property in their jointly owned estate, both parties have equal rights of ownership and administration over all the assets.   

Once married in community of property, there will be various transactions that require the consent of both parties. The most prejudicial consequence of marrying in community of property, is that assets in the joint estate will always be vulnerable to the claims of creditors of both spouses. This marital regime is definitely not recommended for spouses running their own independent businesses as premarital and post-marital liabilities will become communal, thereby endangering the good standing of not just one, but both spouses.   'Out community of property' means that the parties involved entered into a contract, a written agreement notarized by a Notary Public prior to the marriage in terms of which each spouse usually retains his or her separate property and have complete freedom to deal with that property as he or she chooses. If during the marriage, one spouse is declared insolvent, the other's property is protected from the insolvent spouse's creditors, subject to Section 21 of the Insolvency Act. 

Should you choose this option as your marital regime, you will have to decide whether the accrual system should be applied or not. Under both options of married out of community of property (with or without the accrual system), one spouse's creditors cannot hold the other spouse responsible for debt repayment, in direct contrast to the case where the parties are married in community of property.   The accrual system is applicable to all marriages out of community of property, unless the prospective spouses specifically exclude the accrual system in their contract. 'Accrual' means increase and the accrual system is a form of sharing the assets that are built up during the marriage. The underlying philosophy in respect of the accrual system is that each party is entitled to take out the asset value that he or she brought into the marriage, and then share what they have built up together. 

It is however possible to draft the Antenuptial Contract in such a way that the parties share both their pre-marital and post-marital assets on a 50/50 basis, just as if they were married in community of property, but without incurring liability for each other’s debt. Antenuptial Contracts - The two options An Antenuptial Contract excludes community of property. This can only be achieved by entering into an Antenuptial Contract before you get married. 

There are two options: 

  • marriage out of community of property with application of the accrual system
  • marriage out of community of property without application of the accrual system 

If you conclude an Antenuptial Contract prior to your marriage, the accrual system will automatically apply under the Matrimonial Property Act of 1984, unless it is expressly excluded in your Antenuptial Contract. 'Accrual' means increase and by applying the accrual system, couples will share the assets that are built up during the marriage. The basic underlying philosophy in respect of the accrual system is that each party is entitled to take out the asset value that he or she brought into the marriage, where after they then share what they each have built up during the marriage. Take note however, that it is possible to draft the Antenuptial Contract in such a way that the parties share both their pre-marital and post-marital assets on a 50/50 basis, just as if they were married in community of property, but without incurring liability for each other’s debt.     

Marriage out of community of property WITHOUT application of the accrual system  

 If you do not want the accrual system to apply, it must specifically be excluded in the Antenuptial Contract. The exclusion of the accrual system achieves a complete separation of the spouses’ assets - not only applicable to those assets brought into the marriage but also those acquired during the marriage. Each spouse will retain exclusive ownership of his or her own separate individual estate.   There will thus be no sharing of assets or liabilities and on dissolution of the marriage, neither spouse will have any claim against the assets of the other, in other words, there is no sharing of profit or loss. On dissolution of the marriage, the Court will have no discretion whatsoever, to adjudicate the division on the basis of equity or fairness.     

Marriage out of community of property WITH application of the accrual system  

In most cases the accrual system is, perhaps, the fairest marriage system for the majority of couples. Before the introduction of the accrual system in 1984, if prospective spouses chose to be married out of community of property, there was no form of sharing between them of what was built up during the marriage. 

The accrual system was introduced to remedy this. It is applicable to all marriages out of community of property, unless the prospective spouses specifically exclude the accrual system in their contract.   In terms of this regime, both spouses have separate estates during the subsistence of the marriage and do not share each other’s profits or losses during the marriage. This system has all the advantages of the protection afforded to marriages concluded out of community of property i.e. that assets of one spouse are secure from the creditors of the other spouse, but it incorporates the ethic of sharing, which is the basis of an in community of property marriage.   In other words, while neither spouse will be liable for the other spouse’s debts, the parties will, however, share what they have acquired during the subsistence of the marriage. This sharing only occurs upon dissolution of the marriage, by either death or divorce. This regime of marriage allows for very imaginative and flexible estate planning.   The 'accrual' is the extent to which the respective spouses have become richer by the end of the marriage, in other words, the amount by which the specific spouse’s nett wealth has increased over the period of the marriage. The claim will be limited to 50% of the value of which the one party’s estate exceeded the growth of the other’s estate.   

In order to simplify and facilitate the aforementioned calculations, the parties should declare the net value of their possessions at the beginning of the marriage in their Antenuptial Contract, in detail and as accurately as possible.   How to calculate Accrual   The starting point is the fact that the parties are married ‘out of community of property’ and thus the assets are not jointly owned, nor are the parties responsible for each other’s individual debts. Each party has a completely separate estate from that of his or her spouse. Only on dissolution of the marriage, either by death or divorce, the accrual (growth) in each of the individual estates is calculated.   This is done by deducting the net value of each party’s estate at commencement of the marriage, as declared by the parties in their Antenuptial Contract, from the net value of the specific estate at dissolution of the marriage. If one of the estates has grown more than the other during the marriage, the party with the smaller growth has a claim against the party with the greater growth. 

The claim is limited to 50% of the value of which the one party’s estate exceeded the growth of the other’s estate. In order to simplify and facilitate the aforementioned calculations, the parties should declare the net value of their possessions at the beginning of the marriage in their Antenuptial Contract, in detail as accurately as possible. Alternatively, a marriage partner may within six months of the marriage, declare his or her net worth in a written statement, signed by the other partner and attested by a notary (who will usually be the one that attended to their Antenuptial Contract). The notary will file the statement with the copy of the Antenuptial Contract, in an official record, known as the protocol. If either partner's debts at the time of the marriage exceed the value of his or her property, the net value of his or her estate at the start of the marriage is to be regarded as nil. Also, if either partner fails to state the value of his or her property in the Antenuptial Contract or in a separate statement, his or her estate’s value at the time of the marriage will also be regarded as nil.   If a partner's estate on marriage is regarded as nil, everything he or she owns at the end of the marriage will be treated as having accrued during the marriage, unless it can be proved that the property belonged to him or her before the marriage took place. 

  • Certain property belonging to either spouse may not be taken into account when the accruals are calculated: 
  • Any damages awarded to either spouse for defamation or for pain and suffering; 
  • Any inheritances, legacies or gifts that either spouse has received during the marriage, unless the parties have agreed in their Antenuptial Contract to include these or the donor has stipulated their inclusion; 

A donation made by one spouse to the other. This is not taken into account as part of either the giver's or the receiver's estate, with the result that the giver cannot recover part of what he or she gave and the receiver need not return any of it. 

Compensation for injury received during the marriage. When calculating the values at the dissolution of the marriage, allowance is made for any difference in the value of money at the commencement and the dissolution of the marriage, usually with reference to the consumer price index (i.e. the inflation rate).   

 Both their estates would therefore have increased by the same value since the marriage. An accrual claim can only be made on dissolution of the marriage, not during the marriage. If the marriage is dissolved by death, a claim in terms of the accrual system must be paid before the will or intestate succession is given effect to.   If the estate of the first dying spouse has a greater accrual, the surviving spouse would have a claim against the deceased estate. If the estate of the surviving spouse has a greater accrual, the estate of the deceased spouse would have a claim against the surviving spouse. If the surviving spouse is the sole heir/heiress by virtue of the will or of intestate succession (i.e. how an estate devolves when a person dies without leaving a will) then it is academic. It is not necessary to work out the accruals as the surviving spouse receives everything anyway

Pro's and Cons of Antenuptial Contracts


The Antenuptial Contract 

This is the area of entering into marriage in which most people feel a range of uncomfortable – some a little and others extremely. It feels a little distasteful to draw up a contract in case of divorce, when you haven’t even walked down the aisle, but the reality is that it isn’t only divorce for which the contract has implications. It affects your married life as well.

Marrying without an Antenuptial Contract = Married in community of property

If you don’t draw up an antenuptial agreement in South Africa then your marriage automatically defaults to ‘in community of property’, and the state assumes that all assets and liabilities will be shared – ‘everything which is mine is yours, and everything which is yours is mine’. This may sound lovely and more in line with the spirit in which you enter marriage, but take a step back and look at the implications:

Cons 

  • if one of you goes into debt, creditors have claim to all of your assets – that’s your assets as well
  • if one of you has your own business and becomes insolvent, your home and all assets, in both of your names, becomes fodder for debt collectors
  • there is no financial or even contractual independence, certain transactions, such the sale of shares, need the consent of both parties
  • if one partner should die, the estate of both the deceased and surviving partner will be wound up because it is a joint estate – not great for the surviving partner who will find themselves in legal limbo possibly without access to funds in addition to the trauma of losing a loved one.

 Pros 

  • on death or divorce, the estate is divided equally

 Suddenly, a marriage contract becomes rather relevant.

What is an Antenuptial Contract?

An antenuptial contract, prenuptial contract, prenup, marriage contract or ANC in essence is a agreement entered into by parties prior to getting married, they will then be married out of community of property..

There are two types of antenuptial contracts: 

  • marriage out of community of property without accrual
  • marriage out of community of property with accrual 

 Antenuptial Contract without accrual – assets acquired before or during the marriage remain separate throughout the course of the marriage.  Assets are not shared and each partner has a separate estate.


Advantages of marriage out of community of property with the exclusion of the accrual  

  • If one of the parties becomes insolvent, creditors may not attach the assets of the other
  • Each of the parties is still legally obliged to offer financial support to one another should one of you be unable to support himself/herself.
  • Full contractual freedom
  • In second marriages, marriages where the parties already have children, where both parties have already amassed a sizeable estate or in so called marriages of convenience it simplifies matter drastically.

 Disadvantages of marriage out of community of property with the exclusion of the accrual 

  • in the case of death or divorce, you are entitled only to those assets you have accrued in your name – should one of you choose to stay at home to raise children, that partner would not be entitled to the assets accumulated by the other partner

 Best for and most often used by:  those who have accumulated substantial assets prior to marriage and wish to protect them.

Antenuptial Contract with accrual – each partner states the value of their respective assets at the beginning of marriage. Thereafter any assets are shared 50/50. One can state that specific assets be excluded from the accrual, such an inheritance and donations etc.

Advantages of a Antenuptial Contract with accrual  

  • You both share in the wealth accumulated during marriage
  • If each of you owned property before the marriage, it remains in your respective names
  • You each conduct your own independent financial affairs.
  • If one of you goes into debt, it cannot be claimed from the estate of the other
  • In the case of divorce, any assets made whilst married are shared – it doesn’t matter who acquired them; each partner’s current net asset value is calculated by subtracting all liabilities from assets
  • The antenuptial contract can be tailored to suit your needs
  • It protects the partner who remains at home to care for the family

Pactum successorium


Succession clauses in an antenuptial contract.


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 dying 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 antenuptual contract, for example, revocation of previous wills, appointment of executors and heirs, establishment of a mortis causa trust etc. 

 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. Such a bequest can not be revoked by the third party without the consent of the benefiting spouse(s).

POSTNUPTIAL Contracts


Postnuptial Registration of antenuptial Agreements 

Postnuptial registration of an already executed antenuptial contract An antenuptial contract that was executed before the marriage of the spouses, but which was not registered within the prescribed period, is only valid between the spouses. (The spouses will thus be married in community of property as far as third parties are concerned). 

The court may on application by both parties allow for an extension of the period for registration of the antenuptial contract.  The parties must furnish convincing reasons for their failure to register the contract timeously and they must also give evidence that the rights of third parties will not be affected thereby. 

The antenuptial contract is not prepared again, but is lodged in its original form at the deeds office together with the court order. The effective date of the contract will be the date on which the order for extension was issued and not the date of the contract.  Between the date of the marriage and the date of the court order, the parties were thus married in community of property. Only from the date of the court order will they be regarded as being married out of community if property.

Postnuptial execution and registration of an antenuptial contract 

The court may on application by both parties authorise the postnuptial execution and registration of an antenuptial contract, The court will only grant the necessary authorisation if the terms of the contract where agreed upon before the marriage. There must thus have been an express or implied agreement between the spouses to marry out of community of property. The parties must furnish satisfactory reasons for their failure to execute the contract before conclusion of the marriage. The court will always reserve and protect the rights of creditors and third parties. 

Change of matrimonial system (Section 21 of the Matrimonial Property Act) The spouses may jointly apply to the court for leave to change the matrimonial system applicable to their marriage, regardless of how and when they were married.  The court must be convinced that good reasons exist for the application, that sufficient notice has been given to all creditors and that no person will be prejudiced by the proposed change. The court may thereafter order the spouses to conclude a postnuptial contract which will regulate their future matrimonial property system on the conditions as ordered by the court. 

The contract must be executed notarially and must be registered in the deeds registry. Where a postnuptial contract replaces an existing antenuptial contract, the existing contract or a certified copy thereof must be lodged together with the new postnuptial con

THE SECTION 6(1) STATEMENT - Separate declaration of Nett Commencement Value


THE SECTION 6(1) STATEMENT - Declare Nett Commencement value in a separate Certificate

In terms of section 6 (1) of Act 88 of 1984-fhe parties may declare the nett commencement value of their respective estates within six (6) months of the commencement of the marriage. Where the parties did not declare the net commencement values of their respective estates in the antenuptial contract, they may (notarially) execute a statement in terms of this section to that effect. The statement is not lodged and registered at the deeds office, but retained by the notary in his protocol.

What kind of Clauses may not be included in an Antenuptial Contract?


Clauses that are regarded as contra bonis mores and which may not be included in the antenuptial contract 

•             An undertaking by a spouse to adopt or convert to the religion/faith of the other Spouse. 

•             A clause stating that marital disputes will be referred to arbitration. 

•             A clause recreating or retaining the husband’s marital power. 

•             A clause stating that the parties will not live together after their  marriage. 

•             A clause permitting the parties to commit adultery. 

•             A clause stating that the wife shall stop working and become a housewife on a permanent basis from the birth of their first child.

•             A clause stating that the one spouse shall not have the power to bind the other spouse for household necessaries. 

•             A clause stating that neither spouse shall have the right to ask an order of forfeiture to share in the accrual of the other’s estate on                    divorce.

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

THE PARTIES TO THE ANTENUPTIAL CONTRACT


THE PARTIES TO THE ANTENUPTIAL CONTRACT

The parties must be able to validly marry each other. Persons who are prohibited from marrying each other by reason of consanguinity can thus not enter into an antenuptial contract. Take note that it is possible for persons of the same gender to be partners to a “civil union”, which is for all purposes now also recognised as a marriage. 

Civil union partners 

As a result of the Civil Union Act 17 of 2006 which came into operation on 30 November 2006, partners in a civil union can also conclude and register a valid antenuptial contract. A “civil union” is a “voluntary union of two persons who are both 18 years of age or older, which is solemnised and registered by way of either a marriage or a civil partnership, in accordance with the Act, while it lasts, to the exclusion of all  The same practices and procedures applicable to the registration of antenuptial contracts of persons married in terms of the Marriage Act 25 of 1961 apply to the registration of antenuptial contracts of persons joined in a civil union. The legal consequences of a marriage contemplated in the Marriage Act and the provisions of the Matrimonial Property Act 88 of 1984 apply to a civil union in exactly the same manner as it is applicable to persons married in terms of the Marriage Act. 

Parties to a customary marriage  

The Recognition of Customary Marriages Act 120 of 1998 that came into operation on 15 November 2000 gives recognition to marriages concluded according of the customs and traditions observed amongst the indigenous population groups of South Africa. All customary marriages are recognised as marriages, irrespective of whether a person as a spouse in more than one customary marriage - A person who is a party to a customary marriage may not enter into a civil marriage. 

A spouse in a customary marriage who do not have a customary marriage with someone else as well, may into a civil marriage with each other. The spouses of a customary marriage must ensure that the marriage is registered within 3 months after the conclusion thereof. However, failure to register a customary marriage doesn’t affect its validity - The proprietary consequences of a customary marriage (in which a spouse is not a partner in another customary marriage), concluded after commencement of the Act is regulated by the Matrimonial Property Act 88 of 1984 in the same manner as it is applicable to other marriages. Customary marriages entered into after commencement of the act (if a spouse is not a partner in any existing customary marriage), is a marriage in community of property and profit and loss, unless the parties enter into an antenuptial contract which will regulate the matrimonial property system of their marriages. Customary marriages entered into before commencement of the Act remains subject to customary Law. 

The spouses may nevertheless apply to the court for leave to change the matrimonial property system applicable to their marriage. When a spouse in a customary marriage wishes to enter into a further customary marriage he must make an application to the court for the approval of a written contract which will regulate the future matrimonial property system of his marriages. The court is required to terminate the matrimonial property system then applicable to the existing marriage and to effect an equitable distribution of the property, taking into account all the relevant circumstances of the family groups which would be affected if the application is granted. The court may allow further amendments to the terms of the contract or grant the order subject to any condition it may deem just. The court may refuse the application if in its opinion the interests of any of the parties involved would not be sufficiently safeguarded by the proposed contract. 

Minors

If an intended spouse is still a minor, he/she must be assisted by one of his/her parents or by his legal guardian when executing the antenuptial contract. Although only the consent of one of the parents or the legal guardian is required to the entering into of the antenuptial contract, both parents must consent to the contracting of the marriage. Take note that the minor himself must sign the contract. The parent or guardian may not sign the contract on behalf of the minor. The parent or guardian will simply signify his/her assistance by co-signing the contract together with the minor. Both parents must assist the minor if the antenuptial contract makes provision for any alienation of immovable property or a right to immovable thereto belonging to the minor.

Formalities regarding Antenuptial Contracts


Must be in Notarial form:- 

Only an admitted and practicing notary may execute an antenuptial contract. The notary executing the contract must not have a personal interest in the contract and must in particular not be closely related to one of the intended spouses. The notary’s seal of office or embossing seal is usually affixed on the last page of the contract in the absence of the seal of office; the inner pages of the contract must be initialed by the notary. 

Protocol number:- 

It is general practise to refer to the protocol number in the antenuptial contract. Date The antenuptial contract must be entered into prior to the date of the marriage. If the contract is executed on the same date than the date of marriage, the exact time of execution must be inserted. Examples At 12:00 on this the 14th day of May 2013, before me, xxx , a duly admitted and sworn Notary, practicing at Pretoria, Gauteng Province, and in the presence of the undersigned witnesses, there personally appeared:- 

Place of execution 

The place of execution must be mentioned. Signature Both intended spouses must sign the antenuptial contract before a notary, in the presence of two competent witnesses. If the parties sign on different dates, the latest date will be regarded as the date of the contract. The parties may sign the contract before different notaries or may even appoint and authorise another person or persons by means of a written power of attorney to appear before a notary and to sign the antenuptial contract on their behalf. 

If a third person is joined as a party to the contract, such a person must sign the contract as well. Definition of a Competent Witnesses Two competent witnesses must attest the parties’ signatures. A person above the age of 14 years who is able and competent to deliver evidence in court, qualifies as a competent witness. 

REGISTRATION 

The proprietary consequences of a marriage are governed by the iaw of the country in which the husband was domiciled at the time of conclusion of the marriage. It is not necessary for the intended husband to be domiciled in the Republic of South Africa to enter into an antenuptial contract for registration in the Republic. Contracts executed in the Republic of South-Africa must be attested by a notary and must be registered in an office of the registrar of deeds within 3 months after date of its execution, or within such extended period as the court may on application allow.

Contracts executed outside the Republic of South-Africa must be attested by a notary or otherwise be entered into in accordance with the law of the place of its execution, and must be registered in a deeds registry within 6 months after the date of its execution. The Notarial Attestation needs to be legalised. 

Contracts not registered in a deeds registry within the time period as set out above, will have no force or effect against third parties, but will however be valid inter partes. 

Which Office of the Registrar of Deeds?

Registration of an antenuptial contract in any one of the offices of the Registrar of Deeds is operative in the whole of South Africa.

Donations between spouses ITO ANTENUPTIAL CONTRACT


Donations between spouses

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. 

 Donation of wedding gifts 

 A wedding gift is the property of that spouse to whom it was given. If it can not be established to whom the gift was given, the wedding gift will be the joint property of both the spouses. One of the spouses can however stipulate in the contract that he/she donates all wedding gifts received to the other spouse. 

Example  "In consideration of the intended marriage the husband hereby donates and undertakes to give to and in favor of the wife as her exclusive property all wedding gifts received by the parties or either of them in contemplation of their wedding.

Donation of immovable property

A donation of an existing property or an undertaking to so acquire and donate a property to serve as the common home should be worded to make provision for the future needs and financial standing of the parties. The parties can also stipulate that the property must pass to their children on the death of the donee spouse.

Trusts- register trust IN AN aNTENUPTIAL contract


The parties can create a trust in the antenuptial contract. The beneficiaries can be the parties themselves or the children to be born of the marriage.  All the usual requirements for the establishment of a valid trust must be complied with.  As a consequence, the trustee(s) must also appear before the notary in order to signify his/their acceptance of his/their trusteeship.

The accrual system


The accrual system

Parties wishing to enter into a marriage out of community of property do so by concluding an antenuptial contract. The law as it now stands is that such an antenuptial contract is subject to the accrual system. The Act does, however, make provision for this to be expressly excluded in the antenuptial contract. In terms of the accrual system, both parties’ estates are, in principle, independent during the subsistence of the marriage but, on the dissolution of the marriage, they share in the accrual accumulated by each other during the marriage. 

This accrual is defined in section 4 and 5 of the Act and may also be defined in the parties’ antenuptial contract. The accrual system is an attempt to resolve the disadvantages of the standard form antenuptial contract, which is why it is sometimes referred to as a form of deferred community of property. The aim is that at the dissolution of the marriage, both spouses share the assets amassed by their mutual contribution during the subsistence of the marriage. The Act provides for equal sharing in the defined accrual of both estates, but the parties can expressly alter their particular shares of the accrual in the antenuptial contract, which is a recommended course of action for parties with significantly different financial status. 

Each spouse retains and controls his or her own estate during the subsistence of the marriage but their capacity to alienate any of this property is limited: in terms of section 8 of the Act a spouse can be prevented from managing his or her estate in such a way as to seriously prejudice the other spouse’s right to share in the accrual.

The claim to share in the accrual arises only on the dissolution of the marriage and this right is not transfer-able during the subsistence of the marriage.' There is, however, an exception provided for by s 8.4 the right to claim half of the difference between the accruals of the respective estates of the spouses cannot be ceded during the marriage, is not liable to attachment, and does not form part of the insolvent estate of a spouse. S 8(1) provides that the court may approach the high court for an order of immediate division of the accrual in instances where the other spouse by his or her conduct seriously prejudices (or will seriously prejudice) the other spouse’s right to share in the accrual.

Some Answers to Frequently Raised Objections about Prenuptial Contracts



Prenuptial agreements have often been represented as “weapons” that spouses use in a bitter divorce or is construed as pessimistic, “worst-case-scenarios” that seem to say that a marriage is doomed from the start. As a result, many people voice strong objections when their spouse-to-be suggests that they create a prenuptial agreement. Most of these objections come from the heart not the head because prenuptial agreements are, in fact, a wise “insurance policy” for any marriage. Following are the logical answers that may set aside emotional objections.

 Prenuptial Agreements Always Favour the Husband/Wife 
In order to be upheld by the court, prenuptial agreements must be fair and equitable in the eyes of the law.

A Prenuptial Agreement Means We Don’t Trust Each Other 

A prenuptial agreement can only be created in a trusting atmosphere where both parties feel free to offer “full disclosure” regarding their assets and debts. These “intimate” revelations often open the door to resolving other important issues.

Even If We Divorce, I’m Sure It Will Be Amicable 

Even the most loving marriages can end badly. There’s just no way to know. A well-drafted prenuptial agreement will help ensure that there is no emotionally and financially draining court battles in the future on the issues covered in the prenup.

Neither of Us Has a Lot of Assets 

Most young couples have not yet accumulated large estates. In time however they will accumulate.

We’re Not Going to Ever Get Divorced 

Sadly, as divorce statistics demonstrate differently. Much of the advantages of entering into a antenuptial agreement has nothing to do with divorce for instance protecting a spouse from the creditors and debt of the other spouse.

Customary marriages


Requirements for a customary marriage to be recognised as a valid marriage, a customary marriage entered into before 15 November 2000 must only be valid at customary law. However, if entered into from 15 November 2000 onwards it must comply with the following requirements: 

  • The marriage must be negotiated, entered into or celebrated in accordance with customary law.
  • The prospective spouses must be above the age of 18 years.
  • Both prospective spouses must consent to the marriage.
  • The parents of a prospective spouse who is a minor must consent to the marriage. If he or she has no parents, then his or her legal guardian must consent. If the parents or legal guardian cannot consent, a Commissioner of Child Welfare can be approached for consent and where consent is refused by either of the parents, the legal guardian or the Commissioner of Child Welfare, only a Judge of the High Court may consider granting consent.
  • If either of the prospective spouses is a spouse in a civil marriage, a customary marriage cannot be entered into during the subsistence of the civil marriage. A similar provision also applied to customary marriages entered into from 1 December 1988.
  • Although there is no restriction on the number of customary marriages that a husband may enter into, no further customary marriage may be entered into unless an order of court regulating the future matrimonial property system of his marriages has been obtained.

 Registration The aforesaid Act distinguishes between two main groups of customary marriages: 

  1. Those entered into before implementation of the Act (15 November 2000)
    Must be registered within 12 months from implementation of the Act.
  2. Those entered into after implementation
    Must be registered within 3 months from entering into the marriage.

 For purposes of registration the spouse(s) may approach any Home Affairs domestic office, or a designated traditional leader in areas where traditional leaders have been designated to receive applications for registration.

The spouses, at least one witness for each of the spouses’ families, and/or the representative of each of the families should report for purposes of registration. In the case where one or both of the spouses were a minor at the time of a customary marriage entered into after implementation of the Act (in other words from 15 November 2000), the parents should also be present.

Same sex marriages in South-Africa in terms of the Civil Union Act


The Civil Union Act, 2006 (Act No. 17 of 2006) which accords same-sex couples the same rights and status as heterosexual married couples breaks new ground. The Act ensures and respects the equality and the dignity of same-sex people in South African society.

The signing into law of the Civil Union Act makes the democratic South Africa the fourteenth country in the world and the first in the continent to afford same-sex couples equal protection through legal instruments such as the Civil Union Act.

In terms of the provisions of the Civil Union Act, anyone 18 years or older may enter into a civil union. Any religious denomination or organization wishing to solemnize civil unions has to apply in writing to the Minister to be designated as a religious institution that may solemnize marriages in terms of the Civil Union Act.

Furthermore, any Minister of religion or any person holding a responsible position in any designated religious institution must in writing apply to be designated as a marriage officer for purposes of solemnizing marriages in accordance with this Act. State officials who have already been designated as marriage officers in terms of the Marriage Act of 1961 may solemnize civil unions with immediate effect.

The parties to the civil union may choose to have their civil union registered as either a marriage or a civil partnership, upon which a certificate will be issued and the particulars will be entered into the population register. It should be noted that the Civil Union Act does not repeal the Marriage Act of 1961 or the Recognition of the Customary Marriages Act of 1998.

Wife has a choice whether to change her surname after getting married


 It is the social custom of the land for the wife to adopt the family name or surname of the husband, together with the designation “Mrs”. Legally, however, the wife is not obliged to use her husband’s surname and may use either her maiden name or any other surname which she bore before her marriage. In the case of wives belonging to a profession this is not unusual as far as the carrying on of their profession is concerned. The children, of course, will take the surname of the father. 

A wife also includes a woman who has been married according to the rites of the Islamic or any Indian religion or a recognised customary union. The husband is not permitted to take his wife’s name, except after application to the Director-General.

Common misconceptions about antenuptial contracts.


Common misconceptions about antenuptial contracts.
Writer's firm promotes their antenuptial contract services at various marriage expo's every year. I have gained experience as to the mindset of these thousands of couples. It is clear from the expressions of many that they have not taken the time to discuss this vital subject or have no knowledge of the legal implications of getting married. It is also evident that there are misconception and antagonism about and against antenuptial contracts.

Most frequent we hear:
“Antenuptial Contracts are only for the rich”
“We do not own much”
“We can always do it later”
“Our parents didn't do it”
“Antenuptial agreements are unfair”
“Antenuptial Agreements are too personal”
“Antenuptial Agreements are unromantic”
“We will never divorce”
“If we divorce I am sure it will be amicable”
"We love each other. We do not need it"

We understand that to the bride and groom, marriage is a loving contract between two people, as it should be, who want to spend the rest of their lives together. In the eyes of the Law and corporate business, marriage is also a contract between two people not about love, but a variety of economic rights, freedom to trade, exposure and obligations. Should you thus not elect yourself, the Law will decide on your behalf. If you care about your spouse, you, therefore, owe it to yourself and your spouse to take the time to explore your options. Agreeing beforehand on these matters will put your marriage on a more sound footing.

Comparison Table Antenuptial Contracts


Compare your matrimonial property choices.


Marriage in community of property Marriage out of community of property with the accrual system Marriage out of community of property without the accrual system
Before Marriage No Antenuptial ContractAntenuptial Contract entered into before marriage is solemnisedAntenuptial Contract entered into before marriage is solemnised
On date of Marriage Both spouses estates join into one joint estate which belongs to both spouse in equal undivided sharesTwo separate estates. Each spouse may deal with his/her estate as he/she wishes.Two separate estates. Each spouse may deal with his/her estate as he/she wishes.
During the Marriage Joint estate comprises assets and liabilities that belonged to either spouse at the date of and during the marriage, excluding the following: •Property donated or bequeathed subject to the condition that it shall be excluded from a community of property marriage; •Certain life insurance policies;
  • Delictual liabilities.
-Husband and wife have equal powers with regard to disposal of assets, contracting of debts and management of the joint estate. Can perform any juristic act with regard to joint estate without consent of the other spouse, except acts set out in Sections 15{2) and 15(3) of the Matrimonial Property Act.
ASSETS EXCLUDED:
  • Assets excluded in terms of the antenuptial contract;
• Delictual damages for non-patrimonial loss; • Inheritances, legacies and donations; • Donations between spouses • Certain life policies.
Two separate estates. Each spouse may deal with his/her estate as he/she wishes. Any increase or decrease benefits or prejudices the relevant spouse only. Accrual system expressly excluded in the antenuptial contract.
End of marriage on death or divorce The estate is halved and each spouse is entitled to an undivided half share.Accrual = Difference between the net value at commencement (escalated) and the net value at dissolution of the marriage. -The net value at commencement is declared in the antenuptial contract / separate statement. If no net value stated in contract it shall be deemed to be NIL.Each spouse retains his/her own assets and own accrual – no sharing unless Antenuptial contract compels donations or court orders transfer of assets. An financially dependant party can still claim maintenance.
Advantages Promotes legal and economic equality.Both parties share in the wealth accumulated during marriage Each party is free to conduct his/her own independent financial affairs. • If party goes into debt, it cannot be claimed from the estate of the other party. • In the case of divorce, any assets made whilst married are shared – it doesn’t matter who acquired them; each partner’s current net asset value is calculated by subtracting all liabilities from assets • The antenuptial contract can be tailored to suit the parties needs • It protects the partner who remains at home to care for the familyIf one of the parties becomes insolvent, creditors may not attach the assets of the other • Each of the parties is still legally obliged to offer financial support to one another should one of the parties are unable to support himself/herself. • Full contractual freedom • In second marriages, marriages where the parties already have children , where both parties have already amassed a sizeable estate or in so called marriages of convenience it simplifies matters drastically.
Disadvantages If one of the parties goes into debt, creditors have claim to all of both parties assets • If one of the parties has his/her own business and becomes insolvent, both parties assets becomes fodder for debt collectors • There is no financial or even contractual independence, certain transactions need the written or oral consent of both parties • If one partner should die, the estate of both the deceased and surviving partner will be wound up jointly – not great for the surviving partner who will find themselves in legal limbo possibly without access to funds in addition to the trauma of losing a loved one.Need to keep accurate accounting records.In the case of death or divorce, a spouse is entitled only to those assets accrued in his/her name.
 Should one of the spouses stay at home to raise children, that partner would not be entitled to the assets accumulated by the other partner.
Best suited forYounger couples where there is no business risk from either of the spouses. Outdated. Not advisable.Younger couples. Especially where one of the spouses has his/her own business.Second marriages, marriages where the parties already have children, where both parties have already amassed a sizeable estate or in so called marriages of convenience.

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