Modification of Antenuptial Contracts 


Can the standard Antenuptial Contract Template be modified?

Modifications to antenuptial contracts can be made as long as the amendments  will not be considered contra bonis mores (against public policy). 

Examples of possible modifications:

 The accrual system can be made applicable on condition that the marriage has “lasted” a certain time period or on condition that a child has been born. 

“The accrual system referred to in Chapter 1 of Act No. 88 of 1984, as amended to date ("the Act”), but excluding any future amendments thereof, shall apply to the intended marriage between the husband and the wife, save that no accrual claim shall arise at the instance of either spouse until the third anniversary of the solemnization of the intended marriage or until a child has been born of the intended marriage, whichever event shall first occur."

The parties can agree that the accrual system shall not operate on termination of the marriage if either party’s estate is insolvent.

The accrual system can be excluded in whole or in part and may be made applicable to only certain assets or income sources (for example, income earned from employment, services and business conducted). Other assets and income sources will thereby be excluded from the accrual system.

“The parties agree that their marriage shall be subject to the accrual system in accordance with Chapter 1 of Act 88 of 1984, but only in respect of the assets that they acquire jointly or individually after the date of the said intended marriage - 

1.      from income received, by the parties or any one of them:
1.1 as remuneration for work done or services rendered;
1.2 from profits derived from any business conducted, whether personally, in partnership or through a company or close corporation; and
1.3  f rom interest, rental or income benefits received from any trust created by the parties hereto or either of them with the assets acquired by the utilisation of the income from the sources in 1.2 and 1.3 above, but excluding income received from any other sources and, in particular, by reason of possession of assets which exist at the date of their intended marriage and income benefits received by either one of them from any other trust; and 

2.            from the proceeds of the sale and re-investment of any assets which form part of the accrual according to paragraph 1 above, provided that if any asset is acquired partly out of funds forming part of the accrual in terms of the above provision and partly our of other funds, the accreditation in value of that asset which forms part of the accrual and which will on realisation of the asset and re-investment of the proceeds be deemed to be accrual funds, shall be limited to the proportion of the accreditation which the accrual funds bear to such other funds.” 

The contract can also provide that the parties will share in the accrual in a different percentage as the prescribed 50/50.
“The marriage shall be subject to the accrual system in accordance with Chapter 1 of Act 88 of 1984, subject thereto that upon dissolution of the marriage,

1. the husband shall be entitled to 30%; and
2. the wife shall be entitled to 70%’’ 

Inheritances, legacies and donations from third parties are not taken into account when calculating the accrual of a spouse’s estate, unless the parties agree otherwise in the contract.
“in determining the accrual of the estate of either of the parties at the dissolution of the intended marriage, whether by death or divorce, there shall be specifically included therein all the right, title, interest and benefits to which either of the parties is or will become entitled, whether by way of income or capital received or to be received by or accrued to him or her from a third party as a beneficiary in terms of any inheritance, legacy or donation in terms of any will, inter vivos trust or mortis causa trust created or that may be created for his or her benefit, as well as any other asset or assets which either party may acquire by virtue of his or her possession or former possession of such inheritance, legacy, donation or benefits from such trust."