Definition: An Antenuptial Contract, also known as a Prenup, Prenupt, Prenuptial Contract, marriage contract, prenuptial agreement, antenuptial agreement, or premarital agreement, is a contract entered into by two people before their marriage or civil union, to stipulate the terms and conditions for the exclusion of community of property between them.
The Antenuptial agreement must also be notarised by an attorney notary and registered with the Deeds Office otherwise it is of no effect. Failure to do so will result in a complex process to enact a postnuptial agreement.
(See: Matrimonial Regine Changes)
The terms and conditions of the antenuptial contract may not be illegal, immoral or contrary to public policy.
Each spouse usually keeps his or her separate property and has complete liberty to deal with that property as he or she chooses.
If one spouse is declared insolvent, the other’s property is protected from the insolvent spouse’s creditors, subject to Section 21 of the Insolvency Act.
Antenuptial contracts are seen as the cornerstone of a successful union. It gives financial independence to each spouse within the marriage.
Antenuptial contracts dictate the financial future of the two parties after the marriage is terminated. It also directs how the estate assets will be distributed, not only after a divorce but also after the death of a spouse.
An antenuptial contract is an essential document in the eyes of the South African law, and failure to sign an antenuptial agreement means that you automatically get married in community of property
There are many reasons why you should prefer to enter into an Antenuptial Contract in order to be married out of community of property.
The most common reasons are that:
An antenuptial contract is signed by the couple prior to their marriage, in order to be excluded from the community of property regime.
Having an antenuptial contract offers a number of benefits, including:
An Antenuptial Contract excludes community of property. This can only be achieved by entering into an Antenuptial Contract before you get married.
There are two accrual options:
If you conclude an Antenuptial Contract prior to your marriage, the accrual system will automatically apply under the Matrimonial Property Act of 1984, unless it is expressly excluded in the contract.
‘Accrual’ means increase. The accrual system is a form of sharing of the assets that are built up during the marriage.
The underlying philosophy in respect of the accrual system is that each party is entitled to take out the asset value that he or she brought into the marriage, and then they share what they have built up together.
Under both options (with or without the accrual system), one spouse’s property cannot be sold to pay the other’s creditors if the other becomes insolvent – in contrast to the case where the parties are married in community of property.
While preparing yourself for the termination of your marriage might not be what many people consider 'romantic', nothing is worse than losing your hard earned assets simply because you failed to sign an antenuptial contract.
Make signing an antenuptial contract part of your marriage plan, by contacting Van Deventer and Van Deventer Incorporated today.
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The Women’s Legal Centre had in 2009, brought a petition to the Constitutional Court for direct access in terms of Section 167 of the Constitution, seeking relief from the Court to direct the state to recognize marriages concluded under Muslim law.
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