Antenuptial ContractsProtect Your Rights in Marriage!
No one wants to be thinking about the possibilities of a divorce whilst planning to get married to the person they love.
Very few people consider this at all but the importance of this legal decision is one of the most imperative parts of the planning of a wedding before the big “I do’s” take place and even more so than the flowers, the dress or the cake.
Below is some general information regarding Antenuptial Contracts but if you would like to find out more about how this impacts on you personally and would like our assistance in this please feel free to contact us at any time. Marriage is essentially a contract between two people and it is your responsibility to ensure that your legal rights (and those of your future spouse and children) are protected at all times.
An antenuptial contract is a legally binding agreement entered into by a man and woman intending to enter into marriage, attested by a notary and registered in a deeds registry, in which they regulate, by signing a contract, the relationship between them in regard to property.
Different Types of Marital Property Laws and Options
The property laws that govern marriage changed drastically on 1 November 1984, when the Matrimonial Property Act became law. Prior to that date there were essentially two types of marriage:
IN COMMUNITY OF PROPERTY Any money or possessions belonging to either of the spouses at the time of the marriage, or acquired by them at any time thereafter, cease to be the private property of the one person and become part of a joint estate in which each of the partners has an equal, undivided share.
The advantage of marriage in community of property is that each partner shares in the fortunes of the other. A woman cannot be left completely destitute at the end of her marriage because she is automatically entitled to a half-share of their joint property.
However, it also has a disadvantage: if one partner becomes insolvent, the other is protected only if he or she owns property that does not form part of the joint estate. Everything in the joint estate will be attached and sold off to pay any creditors.
BY ANTENUPTIAL CONTRACT Each spouse retains his or her separate property and has complete freedom to deal with it. If one partner is declared insolvent, the other’s property is protected from creditors. Apart from excluding community of property, this contract might contain various other provisions, such as the creation of a trust, or the settlement of property by one spouse upon the other. Despite this, the courts can order that, on divorce, a husband make over part of his estate and pay maintenance to a wife left potentially destitute.
Marriages contracted after 1 November 1984 are governed by three sets of rules:
IN COMMUNITY OF PROPERTY If no ante nuptial contract is entered into before the marriage, the couple are still married according to the rules of community of property and the rules of joint administration apply (that is, both spouses administer their joint assets).
BY ANTENUPTIAL CONTRACT WITH ACCRUAL Profits made by each of the parties during the marriage are shared when the marriage is dissolved by death or divorce. All other property is retained by the original owners. This is known as the accrual system.
BY ANTENUPTIAL CONTRACT WITHOUT ACCRUAL If the accrual system is excluded in the ante nuptial contract, the marriage is subject to the same rules as marriages out of community of property contracted before the promulgation of the Matrimonial Property Act in 1984 except that, on divorce, the courts will have no discretionary power to redistribute property. In this instance, only periodic maintenance might be available to the divorced wife.
Can you change your mind?
After marriage, the terms of the ante nuptial contract become irrevocable unless they are amended by an order of the Supreme Court or, in some cases, by a notarial contract which must be registered in a deeds registry. A marriage settlement is therefore binding on the person who promises it, and if during the marriage he or she does not fulfil the promises made, it can be enforced as long as an order of court has not been granted that the other spouse must forfeit the benefits of the marriage.
A couple may at any time make a joint application to court to have their matrimonial system changed. They can do this regardless of whether the marriage took place before or after the promulgation of the Act or of the system chosen. The court must, however, be satisfied that:
- There are sound reasons for the change;
- Creditors have been notified sufficiently in advance;
- No other person will be prejudiced.
If permission, that is, an order of court, is granted, the couple will be authorised to enter into a notarial contract to give effect to their new choice.
If you would like to find out more about Antenuptial Contracts and would like our assistance in this please feel free to contact Coetzee Attorneys & Notaries at any time. Marriage is essentially a contract between two people and it is your responsibility to ensure that your legal rights are protected at all times.