F.A.Q - Antenuptial Contracts 

An antenuptial agreement is entered into where couples do not want to get married in community of property and is concluded before marriage. An antenuptial agreement might be especially important for someone who already has assets like a business, or family obligations like children from a previous marriage.

An antenuptial agreement, otherwise known as a prenuptial agreement or prenup, is a contract made between two individuals who are planning to get married. Antenuptial agreements are documents that set forth the rights of each spouse and the property division in the event of a divorce.

Antenuptial contract with accrual refers to one of three civil marriage regimes recognised under South African law. Most commonly known as “Marriage out of Community of Property subject to the Accrual System”, this system requires an antenuptial agreement to be drawn up by an attorney before the date of marriage. If the parties marry without entering into an antenuptial contract first the will be married in community of property. 

It is possible to enter into an Antenuptial Contract after marriage – this is called a Postnuptial Contract.

An antenuptial agreement is entered into where couples do not want to get married in community of property and is concluded before marriage. An antenuptial agreement might be especially important for someone who already has assets like a business, or family obligations like children from a previous marriage.

These are assets owned by either spouse, or even by the spouses jointly, that they want to ignore when calculating accrual. By excluding an asset, you prevent your spouse from obtaining any benefit from the growth on the value of that asset during the marriage.

We register an antenuptial contract for R1450 all inclusive fee. 

The contract must be entered into/ signed before the marriage, The said contract must further be executed in front of two competent witnesses and attested by a notary before the marriage, Once executed the contract must be registered in the Deeds Office within 3 months of executing the contract.

An Antenuptial contract is an agreement entered into between two parties prior to their marriage and is often referred to as a “prenuptial”. ... 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.

How to calculate the accrual?

1. DETERMINE THE VALUE OF THE ASSETS: Draft a list of all the assets. ...
2. DEDUCT THE FOLLOWING FROM THE TOTAL VALUE OF THE ASSETS: The commencement value as stated in the antenuptial contract (adjusted to be in line with the weighted average of the Consumer Price Index), ...
3. THE RESULT = “The Accrual”

No particular formalities are required for an antenuptial contract to be valid and enforceable between the parties thereto. ... Consequently any antenuptial contract, which is proved to have been entered into between the intended spouses, no matter how informally, will be valid inter partes.

Once executed the contract must be registered in the Deeds Office within 3 months of executing the contract.

Remember, it must be executed before you get married either by you and your spouse or a person having a special power of attorney. If it is not done before you get married, you would be married in community of property. The only way to change that would be to approach the High Court for consent to change it.

Pros Of Getting Married Out Of Community Of Property With Accrual:

•  The spouses share the increase in their assets accumulated during the marriage and the economically weaker spouse will benefit.
• The spouses do not share their assets acquired before their marriage (but only if excluded in the ANC or included in the commencement values of the parties’ estates). The accrual system appeals to people who are already wealthy at the time of marriage.
• During the course of the marriage, each spouse manages his/her estate at will. There is no complex joint or equal administration.
• The spouses are not liable for each other’s debts. All that they share is their net assets. Thus, if one spouse becomes insolvent, the other spouse is protected against creditors.

Cons Of Getting Married Out Of Community Of Property With Accrual:

• The economically stronger spouse has to share the profits that he/she made during the marriage.
• One has to enter into an ANC in order for the accrual system to apply.
• The calculation of accrual at the end of the marriage can be a bit complex.

Pros Of Getting Married Out Of Community Of Property Without Accrual:

• Each party will keep their individual assets and liabilities separate and can handle it however he/she likes.
• Spouses are not liable for each other’s debts, thus if one spouse becomes insolvent creditors cannot make a claim against the solvent spouse with regards to their assets.
• The financially and/or economically stronger spouse is not legally obligated to share his/her assets with the financially and/or economically weaker spouse. This is subject to judicial discretion and forfeiture of benefits.

Cons Of Getting Married Out Of Community Of Property Without Accrual:

• The economically and/or financially weaker spouse does not get to share in the estate of the economically and/or financially stronger spouse even if the other party indirectly contributed.
• An ANC has to be entered into prior to marriage which incurred additional fees.

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.

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 -

Consent and assistance by parent/ legal guardian.

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. If the parent/s or the legal guardian of the minor refuses to consent to the minor entering into the antenuptial contract, the High Court as upper guardian may on application grant the necessary consent

A marriage entered into by a minor without the necessary consent is not void, but may be dissolved by the High Court on application by the parents or legal guardian of the minor. The application must be brought before the minor attains majority or within 6 weeks after the date on which the guardian became aware of the marriage.

Calculation of the accrual?
The value of each spouse’s estate at commencement of the marriage must either be disclosed in the antenuptial contract or in a separate statement. If no value is recorded, the nett commencement value will be presumed to be nil.

On dissolution of the marriage each spouse’s estate will be valued again in order to calculate the growth/accrual of each estate. The commencement values are adjusted to make provision for inflation. The following assets are however left out of account in calculation of the accrual, unless the antenuptial contract provides to the contrary:

• Damages received for non-patrimonial  loss ;
• Inheritances, legacies and donations received from third parties Section
• Assets especially excluded from the accrual in the antenuptial contract -
• Donations between the spouses -

The spouse whose estate shows a smaller increase has a claim against the spouse whose estate shows the greater increase, for half the difference between the respective accruals.

If the parties enter into an antenuptial contract, the accrual system will automatically apply to their marriage out of community of property, unless it is expressly excluded in the contract. In order to prevent any uncertainty it is advisable to nevertheless insert a clause in the contract in which it is stated that the marriage is subject to the accrual system.

If the parties do not wish for the marriage to be subject to the accrual system, a clause to this effect must be inserted accordingly.

Example
“The said intended marriage will not be subject to the provisions of Chapter I of the Matrimonial Property Act 88 of 1984 and the accrual system is hereby expressly excluded.”

A Notary Public is a term that refers to an attorney who possesses in-depth knowledge of a set of legal facts and the processes prescribed therein.  A Notary Public needs to be admitted and authorised by the High Court to witness signatures, draw and attest contracts and statements, and authenticate the validity of certain documents.  This office is held to a higher standard of care than an attorney since the nature of the services they provide is highly ethical and requires specialist knowledge.

What does a Notary do?
Part of a Notary's duty is to screen the individuals who sign important documents for their true identity, their awareness of the contents of the document or transaction, and their willingness to sign without coercion or intimidation. Some situations require a Notary to put the individual under oath, declaration under penalty of perjury that the information contained in a document is true and correct.

A Notary Public has to have impartiality as a foundational value. They need to be duty-bound and thus cannot act in situations with personal interest. The public trusts that the Notary's screening tasks are corruption-and self-interest free. Impartiality also assures that a Notary never refuses to serve a person due to their religion, race, nationality, politics, sexual orientation, or status as a non-customer.

By law, the following documents need to be drawn up by a Notary:

• Antenuptial Contracts
• Long-term Leases
• Servitudes (personal and praedial)
• Cession of Rights in Sectional Title Schemes
• Notarial Bonds

A Notary Public is also needed to certify a range of legal documents, including:

• Marriage certificates 
• Birth certificates
• Death certificates
• Single status certificates
• Divorce certificates
• Police clearance certificates
• Powers of attorney
• Copies of IDs or passports 
• Educational documents

Other duties can include: Administering the oath or affirmation, witnessing and authenticating the execution of documents for use inside and outside of a country; protest bills of exchange; and preparing ship protests. 

A prenup can be useful for couples looking to protect their finances, debts, and children from prior relationships. With a prenup, couples can keep their assets separate in the event of divorce or death. Moreover, couples can use a prenup to limit their liability for each other's debts and to ensure that any children from prior relationships receive their fair share of the property.

Owing to the abolishment of the marital power which a husband previously exercised over the person and property of his wife it is no longer necessary to exclude it in the antenuptial contract. The marital power of the husband may also not be recreated or retained in the antenuptial contract. If it is mentioned, it will be regarded as pro non scripto. (Section 29 of the General Law Fourth Amendment Act 132 of 1993, on 1 December 1993)

The Accrual System The accrual system is outlined in Chapter 1 of the Matrimonial Property Act 88 of 1984 which applies to marriages out of community of property.

It operates by separating the assets of each spouse during the marriage and only sharing any gains made during the marriage on dissolution. Assets owned by either spouse prior to the marriage are not subject to this system. To calculate the accrual, the value of each spouse's estate at the commencement of the marriage must be disclosed in the antenuptial contract or a separate statement. If no value is stated, it is presumed to be zero. Upon dissolution of the marriage, each spouse's estate is valued again, adjusted to make provision for inflation, and the gain (accrual) is calculated.

The accrual system applies automatically to marriages out of community of property, unless it is expressly excluded in the antenuptial contract. If the parties do not wish to be subject to the system, they must insert a clause in their contract stating so. It is possible to modify the system in a number of ways.

For example, the parties may make the system applicable only after a certain time period or after a child has been born or make it inoperative if either party's estate is insolvent. They may also opt to have inheritances, legacies, donations, and donations between spouses taken into account for calculation of the accrual.

They may even agree to share the accrual in a different percentage than the prescribed 50/50. Within six months of the marriage, the parties may declare the net value of their respective estates either in the contract or in a separate statement certified by a notary and kept in his protocol. If the parties do not wish their values to be public, they must make use of the separate statement.