Ante-Nuptial Agreements in South African Law
Marriage is a wonderful event in anyone’s life that is full of joint decisions. But these decisions start before the marriage begins, and one of those could be to enter into a marriage contract. Any marriage out of community of property is reached by drawing up an ante-nuptial contract (or ANC). This marriage contract is not to say that the marriage is set out to fail, it is just designed to assist the couple in the future, regardless of whether the couple divorces or not.
The ante-nuptial agreements are the most significant contract that a married couple will sign throughout their marriage. It is carried out before the marriage; the function of the contract is to alter or adjust some or all of the inevitable financial dividends of the marriage. The ante-nuptial is more commonly known as a prenup.
The ante-nuptial agreements or prenups allow the couple to integrate their own matrimonial property administration. They might include any provisions they like in their ANC, granted that the provisions are not against the law, basic morals or the nature of marriage. This allows the couple to create an agreement that is unique to their needs. ANC’s are difficult to change as they edict the financial and proprietary concerns of the couple’s future and could affect the rights of the couple’s creditors.
There are two types of Marriage Contracts that a couple may agree to:
- An ANC that excludes community of property, community of profit and loss, and the accrual system; or
- An ANC that excludes community of property and community of profit and loss, but includes the accrual system
The ‘accrual’ is the degree to which the husband and wife have become wealthier by the end of the marriage, in other words, the amount by which the spouses’ combined wealth has developed or grown over throughout the duration of the marriage. When married, in accordance with the accrual system, each spouse attains a certain right to the other’s property in the event of divorce. Neither system is superior or greater to the other. The chosen system the couple decides to get married will be defined and based upon the needs of the couple. Bear in mind that a Marriage Contract is a legal and legitimate contract, like any other, and is, therefore, subject to fraud, duress and mistakes.
Only attorneys who are a notary public may execute a prenup. It is imperative that both parties consult with the notary public in advance and request clarification of the various marital regimes, and the implications of each on divorce. It is important to properly understand the implications. In actual fact, it is necessary for the parties to obtain independent and separate legal advice before pledging to the terms of a prenup.
Once the prenup has been drawn up, both parties and the notary public attorney must sign it in prior to the marriage. The prenup will then be forwarded to the deeds office to be registered, this is specific to the area where the parties reside to be registered. Registration must be effected within three months of the date it was signed by the notary public. Apart from the usual fees, a prescribed fee is payable to the deeds office upon registration of the contract.
With the understanding that the prenup is not signed or registered in time, the couple may then approach the High Court in terms of the Deeds Registries Act 47 of 1937 through a joint application to grant amnesty for the late signing and/or registration of the prenup after the completion of the marriage. The application has to be made within a stipulated time after it was discovered that the contract was not correctly registered. Notice must also be provided to the registrar of deeds of the applicant’s intention to bring such an application.
Dreyer Engelbrecht Attorneys Inc. is a law firm specialises in a broad spectrum of legal services and remain driven by passion, integrity, innovation and we are forever in the pursuit of excellent customer service and complete customer satisfaction. We are also able to assist you with the drafting and registration of Anti-Nuptial Agreements.