Antenuptial Contracts – To Sign or Not to Sign?

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:

• Exclusion of assets owned prior to the marriage;
• Determination of the commencement value of the estate;
• Division and calculation of the estate upon divorce, including an accrual claim or not;
• Transactions with third parties during and after a divorce;
• Distribution of assets upon divorce and death.

Under South African law, an ANC determines the marriage regime under which the couple will fall into. There are three types of regimes:

• Community of Property – where there is no ANC, and all assets and liabilities are jointly owned and equally shared between the spouses.
• Out of Community of Property with the application of the accrual system – where each spouse declares their nominal value at the start of the marriage and retains their assets and liabilities until death or divorce. The accrual of each spouse's assets and liabilities is then calculated and divided.
• Out of Community of Property with no accrual system – where the assets and liabilities of each spouse are separate and not shared, with a potential claim for spousal maintenance.

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.