Antenuptials and agreements

To some people an antenuptial agreement seems like a sign of mistrust between partners.

In fact, it gives a couple the opportunity to agree on their financial future and how their assets and gains will be distributed or divided when their marriage comes to an end because of death or divorce. It also prevents the marriage from automatically being one of in community of property.

An antenuptial agreement is entered into where couples do not want to get married in community of property and is concluded before marriage. An antenuptial agreement might be especially important for someone who already has assets like a business, or family obligations like children from a previous marriage.

The contract ensures that partners retain their own separate estates and are not liable for each other's debts for instance, unless they have taken out the debt jointly or a spouse provided personal security for the debt of the other spouse.

Antenuptial agreement with or without the accrual

If it's without the accrual, the partners keep what is theirs before marriage and also keep what becomes theirs after marriage. If the agreement is with the accrual system, each party still retains his or her own estate, but the agreement determines how the growth in each partner's estate will be shared.

The accrual takes effect when the marriage ends - because of divorce or death. You can't make a claim for the accrual while still married. But when the marriage ends, the partner with the smallest accrual has a claim against the estate of the other. The claim is for 50% of the difference between the growth in the values of the two estates or any percentage as agreed to by the parties in their antenuptial agreement.

When you sit down with a lawyer to draw up an antenuptial, you'll first be asked for a list of assets and the current market value of each item. These are included in the contract and will be used to work out the accrual later. You and your partner can agree to specifically exclude any asset - but the details of the listed assets must be very accurate to prevent legal problems in the future. Some assets will automatically be excluded for example any inheritance that you obtain during the existence of your marriage. The document is signed in front of two witnesses and sent off for registration.

It is important to leave enough time for a contract to be drawn up by a lawyer who is a registered notary and who will deliver it to the deed's office. There it will be registered for a fee. This must happen before the wedding day. Apart from the registration fees, the usual attorney's fees for having the agreement drawn up will apply.

If you get married without having your antenuptial contract signed or registered in time, you need to apply the High Court jointly to be granted permission to have the late signature or registration after the marriage accepted as soon as possible and also inform the deeds office of this. This will mean more costs as well.

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