With bliss, anticipation and love abound, it is almost uncomfortable for a couple that is about to get married to discuss the possible dynamics around which the marriage may likely end. It is indeed an uncomfortable discussion, but one that is necessary and in best interest if looked at from the right perspective. We all wish for good things, but good things sometimes do not last.
In some deep African indigenous communities, putting measures in place to prepare the end for a marriage that is only starting may be seen as casting a spell of bad luck. Just like writing a Will, some people believe it is taboo to write a Will because it might invite the death of the person writing it. We probably saw on the television news in 2020 the fiasco where the Gauteng Government started digging graves in anticipation of a heavier wave of Covid-19 deaths. A certain political movement then went in protest and started to fill up those graves citing it is taboo in African culture to dig a grave for someone who is alive and well. These are some deep rooted beliefs that may only erode with time as multiculturalism expands and people adapt to prevailing conditions in a modern world.
Divorce in South Africa is high and while doom for a marriage is not wished for, it is a probability as the statistics clearly reflect. Preparing for such an eventuality is not being anti-nuptial (against marriage) but it is usually in best interest so as to forestall a costly, strenuous and contested divorce process.
An Antenuptial Contract (ANC) is an agreement whereby spouses entering into a marriage dispense with the default system of marriage in community of property and agree on the consequences of matrimonial property upon dissolution of the marriage. The Matrimonial Property Act 88 of 1984 introduced the accrual concept, which basically is where the growth of the individual estates is only what is shared by spouses in Out of Community of Property marriages. The ANC is therefore used to provide for terms with regards to the estates of the spouses in the marriage. Instead of being seen as anti-nuptial, antenuptial contracts are actually pro-nuptial and couples concluding Antenuptial Contracts will most likely see more benefits than disadvantages.
It is important for the Antenuptial Contract to record what each spouse’s assets are as at the date of marriage and their values. This is vital as it feeds into the validity of the contract to avoid the situation in B v B  ZASCA 14 (24 March 2014) where the ANC was declared invalid as it did not specify the values nor properly identify the assets. This is important in that at the dissolution of the marriage, in the event that the accrual system applies then so can the growth of the individual estates be calculated to determine the sharing of the accrued assets.
An Antenuptial Contract is indeed a binding contract which can be enforced legally as long as it complied with attendant requirements. It therefore gives peace of mind and security to those that enter into such contracts, knowing that their interests as espoused therein have legal and binding effect.
Couples in same sex unions who register and solemnise their unions under the Civil Union Act of 2006 may also enter into Antenuptial Contracts before the registration of their unions. This is mainly because civil unions have the same legal consequences as marriages concluded under the Marriages Act 25 of 1961.
While it is possible to conclude an Antenuptial Contract after the conclusion of the marriage to alter the matrimonial property regime, it is advisable to execute an ANC before the conclusion of the marriage for an obvious reason, or two. The spouse with lesser economic bargain may feel they are being betrayed by their spouse who now wants to alter to Out of Community of Property (with or without accrual). This can result in long protracted Court battles. Further, creditors of the spouses also come into the arena to safeguard their interests when the matrimonial property system is altered. Moving from In community to out of community affects creditors’ rights, and they will not take it lying down.
Our Family Law department assists with Antenuptial Contracts that capture and protect the interests of the parties entering into it. Our Attorneys and Notaries have years of experience in this area of law, which is of best interest to spouses because the dynamics of matrimonial property systems substantially affect the estates and wealth of concerned parties.
Contact us for comprehensive assistance.
The information contained in this site is provided for informational purposes only, and should not be construed as legal advice on any subject matter. One should not act or refrain from acting on the basis of any content included in this site without seeking legal or other professional advice. The contents of this site contain general information and may not reflect current legal developments or address one’s peculiar situation. We disclaim all liability for actions one may take or fail to take based on any content on this site.
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