Antenuptial Contracts Explained

by Monique on March 20, 2013 · 0 comments

Weddings aren’t all sparkly rings and flower arrangements, unfortunately – there’s a bit of legal admin to sort through. FAIRLADY Bride talked to an industry expert to guide us through it – jargon free!

Nicky Stowe Photography

It’s probably the last thing you want to think about right now, but don’t forget to sort out your antenuptial contract before you get married.

It isn’t very romantic, but neither is being liable for all your spouse’s debt! Michelle Dommisse, a notary specialising in antenuptial contracts from HWD Attorneys, gave us a quick run-down on how it all works.

In community of property

If you don’t sign a specially prepared contract before you get married, you will automatically be married ‘in community of property’. This means that everything you have (assets and debts) before you get married and that you acquire during your marriage (including remuneration, inheritance and gifts) is shared by both of you.

The advantage of this system is that it treats the two of you equally. The disadvantage is that both spouses are jointly and severally liable for each other’s debts (if one of you has or gets into debt or even becomes insolvent, the other spouse will also be held responsible for what is owed). This is obviously a disadvantage if either of you runs your own business (or plans to do so one day).

It is a good idea to consider getting married out of community of property by signing an antenuptial contract (ANC). There are two different types and both need to be prepared by and signed in front of a notary public before you are married.

Out of community of property without accrual

In this case, each of you keeps separate ownership of everything (assets and debts) that you bring into, and acquire, during the marriage.

If one of you gets into financial trouble, the other one will be able to retain his/her assets without dragging you both into financial misfortune.

The disadvantage of this system is that it leads to an unequal distribution of assets. Non-monetary contributions (such as raising children and looking after a home) are not compensated.

Out of community of property with the accrual system

This system is based on the idea that both of you will contribute equally to the union and should therefore share equally in the benefits gained.

The accrual system recognises emotional and physical support as contributions, as well as financial ones. On the other hand, each of you is protected from the debts (and possible insolvency) of the other.

If you choose this system, you will each need to list your assets and debts and note anything of special sentimental or financial value.

After these lists have been recorded and your contract signed, the total financial gain made together is shared between both of you equally if your marriage ends

FAQ 

Q: In the rush of the wedding, we didn’t get around to obtaining an ANC. What should we do?

A: Since you didn’t obtain an ANC before the wedding, you are deemed to be married in community of property and you will be jointly and severally liable for each other’s debts.You will also need each other’s consent before you open a bank account or sell any asset.

Firstly, you’ll need to contact an attorney and notary. They will draw up the application to the High Court to have the marital regime of your marriage changed. They will then contact an advocate and arrange a court date. The notary will draft your antenuptial contract and you will sign it and have it notarised in front of the notary and two witnesses. Once the order of court is granted, the notary can lodge your antenuptial contract at the Deeds Office. After about three weeks, the notary will appear at the Deeds Office and have your antenuptial contract executed in front of the registrar.

The approximate cost of the entire process will be between R20000 and R30000.

Q: My fiancé wants me to change my name when we get married, but I’m dreading the admin involved. What is required?

A: These days, it is no longer assumed that you will change your name. The documents for Home Affairs require you to state your choice. Your marriage officer (or minister) completes the forms for Home Affairs and he/she will ask you to elect your surname. You may keep your name, change it to your fiancé’s or combine both surnames.

This is an extract from ‘Let’s talk about money, honey,’ compiled compiled by Liesl Pretorius for FAIRLADY Bride.  Republished with permission. 

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