Donations between spouses ITO ANTENUPTIAL CONTRACT

In the past, South African law restricted spouses' ability to donate assets to one another. However, since the commencement of the Matrimonial Property Act, these prohibitions have been repealed. Today, including specific Donation Clauses in your Antenuptial Contract (ANC) is a powerful tool for estate planning, asset protection, and financial fairness. At Louwrens Koen Attorneys, we help you navigate these provisions to ensure your spouse is well-provided for while maintaining a robust "shield" against potential creditors.

1. The Strategic Value of Donations in an ANC

When you include a donation in your registered marriage contract, it serves as a formal, notarised record of ownership. This offers several distinct advantages:

  • Exclusion from Accrual: By default, donations between spouses are excluded from the accrual calculation, meaning they do not form part of the growth shared at the end of the marriage (unless you expressly agree otherwise).
  • Insolvency Protection: If one spouse becomes insolvent, a donation recorded in the ANC serves as vital evidence that the asset belongs to the solvent spouse. This can prevent the Sheriff of the Court from attaching specific assets to settle the other spouse's debts.
  • Recognition of Contribution: In marriages where the Accrual System is excluded, the "breadwinner" spouse can use donation clauses to acknowledge the other spouse’s non-financial contribution to the household, ensuring they have assets in their own name.

2. Managing Wedding Gifts

Wedding gifts can often become a point of contention during the dissolution of a marriage. Under South African law:

  • A gift belongs to the spouse to whom it was explicitly given.
  • If the recipient is unclear, the gift is considered joint property.

The Proactive Solution: You can stipulate in your ANC that all wedding gifts—regardless of who receives them—are donated to a specific spouse.

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

3. Donation of Immovable Property (The Common Home)

One of the most significant provisions you can include is the donation of a common home. This can be an existing property or a formal undertaking to purchase a property in the future.

  • Future-Proofing: These clauses are worded to reflect the parties' future needs and financial standing.
  • Legacy Planning: You can stipulate that upon the death of the receiving spouse, the property must pass directly to your children, ensuring the family home remains within the bloodline.

4. Why Notarial Drafting is Essential

A donation clause is only as strong as its wording. To be enforceable against third parties and recognised by the Deeds Office, the donation must be:

  1. Specifically Defined: Vague descriptions of assets can lead to the clause being struck out.
  2. Notarially Executed: The donation must be signed before a Notary Public as part of the ANC.
  3. Registered: The contract must be lodged within the statutory timeframes to provide the necessary "creditor shield."

Secure Your Spouse's Future for a Fixed Fee

With over 10,000 couples assisted, Louwrens Koen Attorneys offers the precision required to draft effective donation and succession clauses. Our office near Loftus Versveld provides an all-inclusive registration service at the Pretoria Deeds Registry for a fixed fee of R1,900.

At Louwrens Koen Attorneys, we understand that a donation clause is more than just a gift—it is a strategic legal shield. Having assisted over thousands of couples from our offices at Loftus Versveld, we ensure your ANC is drafted with the precision required to satisfy the Pretoria Deeds Office and protect your family's future. Registration for a fixed fee of R1,950.

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