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Wedding Day Advice | Wedding Planning

Antenuptial Contracts: What You Need to Know

Your wedding is around the corner and you’re on top of things…Venue booked? Check.  Photographer on call? Check. Cake ordered? Check. Invitations sent out? Check.

Most of the exciting, fun details have been decided on, and now (for just a short while, at least) it’s time to deal with the serious issues.

Admittedly not one of the more romantic aspects of planning a wedding, the issue of the antenuptial contract (or ANC) is of huge importance – so take your time when making this decision. We agree that the concept of possibly being divorced from your sweetheart one day is not something that you want to think about, but here the old adage of prevention being better than cure really does hold true. Nobody wants to consider divorce but, should there be a split, who needs the added drama of things getting nasty?

Before you decide on the way forward, though, you’ll need to know what your legal options are. So, if you still have your head in the clouds, or just need a little clarity on the subject, we’ve put together a basic guide for you.

THE THREE REGIMES

In South Africa, there are three matrimonial property regimes. These are:

  1. Marriage in community of property
  2. Marriage out of community of property – without accrual
  3. Marriage out of community of property – with accrual

Let’s look at what each of these three entails.

MARRIAGE IN COMMUNITY OF PROPERTY

This is the default setting, and the regime under which you will be married if you fail to (or choose not to) draw up a prenuptial contract.
In a nutshell, being married in community of property means that all assets and liabilities fall within one joint estate. This incorporates assets and liabilities that were acquired both before and during the marriage. So, in other words, you will be married in the truest sense of the word, sharing everything (good or bad).
This ‘financial merger’ route, although having fallen out of favour in recent years, is still chosen by many engaged couples – whether by choice or by omission.

Pros:

  • It is free and easy – no forms, no fuss, no fees
  • Couples determined to live by the "for better or for worse” mantra feel that it puts them on the same page
  • Should the marriage dissolve when finances are fit, the partner who contributes less financially can benefit.

Cons:

By far the riskiest of the three marital contracts, being married in community of property means that, should your spouse fall into debt or suffer a financial crisis, you will be held equally liable

  • There is no financial independence under this regime, as certain transactions need consent of both parties
  • Should one partner die, the estate is wound up – leaving the surviving spouse in financial limbo for a period
  • This system can lead to further hostility between the divorced couple.

MARRIAGE OUT OF COMMUNITY OF PROPERTY – WITHOUT ACCRUAL

When getting married out of community of property, without accrual, assets and debts remain separate – including those amassed prior to, during and after the marriage. Each spouse maintains his or her own estate and has full financial freedom from the other spouse. Under this regime, all assets and liabilities remain with each partner, and when the other partner contributes to the other’s estate, it can become tricky to claim any part of it.

Pros:

  • Total independence of contractual capacity
  • What’s yours remains yours, so you have peace of mind that Grandma’s silver stays with you
  • Creditors will not be able to hold you responsible should your spouse fall into financial trouble.

Cons:

  • There is no provision for sharing, which means that spouses do not benefit from the others’ financial gain
  • Should one partner get into the position of being unable to support himself, the onus falls on the other to do so
  • In the case of a divorce, there may still be squabbling over the fine print.

 

MARRIAGE OUT OF COMMUNITY OF PROPERTY – WITH ACCRUAL

When getting married out of community of property, with accrual, all individual assets accumulated prior to the marriage are specified in the contract, and are subsequently retained by each spouse. Assets gathered during the marriage are split 50/50, except for those that are specifically excluded (donations and inheritances, for example).

The most flexible of the marital regimes, the accrual option can be tailored to suit the needs of each individual. The relatively small cost of setting up the contract is well worth the resulting peace of mind.

Pros:

  • Financial independence for both parties
  • Creditors will not be able to hold you responsible should your spouse fall into financial trouble
  • Wealth is shared equally between both partners no matter how it is acquired
  • Property ownership status prior to the marriage remains as such
  • The partner who stays at home to raise the family has a higher level of protection
  • A well-crafted contract will ensure that there is no squabbling should divorce become a reality.

Cons:

 

  • Getting a contract drawn up will add to the wedding costs (regard this as an investment in your future)

If you’ve made up your mind, and have decided that you definitely want a prenup, we suggest that you look for an attorney as soon as possible – one that you feel comfortable with and who you can trust to put all your ducks in a row for you. The sooner this gets done, the sooner you can focus on the perfect place settings

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