Antenuptial marriage contracts

Preparing for your marriage should be an occasion of anticipation and joy, so it is usually uncomfortable to consider death or divorce at this time. However, it is very necessary to protect your spouse’s best interests with this kind of contract.

Johanni and Lerika are admitted notaries and can do certain legal work reserved only for notaries such as:

  1. Signing of antenuptial (marriage) contracts,
  2. Certification of certain documents for overseas countries, and
  3. Notarial cessions of real rights.

Antenuptial Marriage Contracts

Preparing for your marriage should be an occasion of anticipation and joy, so it is usually uncomfortable to consider death or divorce at this time. However, it is very necessary to protect your spouse’s best interests with this kind of contract.

The antenuptial agreement is yet another building block in a healthy relationship, so consider these five questions before you tie the knot:

Why do I need to enter into an Antenuptial Agreement and what happens if I don’t?

Answer: If you do not sign an Antenuptial Agreement before you register your marriage, you will be considered married in community of property.

What different types of matrimonial property systems exist in South Africa and what are the implications of each one?

Answer: There are 3 types of Matrimonial Property systems in South Africa:

1. In Community of Property

If you are married without signing an Antenuptial Agreement, your marriage will automatically be in community of property.

This means that the property and debt that each party has acquired independently before the marriage and during the marriage will form part of the joint estate of both parties and both will be held equally liable for all of the debt. The spouses have economic equality, so they share equally in each other’s wealth that was acquired before and after the date of marriage.

A person in a marriage in community of property will require the consent of their spouse in order to sell and mortgage any immovable property, sell jewellery, coins, stamps, paintings and investments forming part of the joint estate, amongst other things. A spouse in such a marriage may not enter into a credit agreement, a contract to purchase immovable property or a surety without the consent of the other party.

Should any one of the spouses be declared insolvent and/or be sequestrated, the other will automatically also be declared insolvent and/or be sequestrated.

This is a risky system to enter into in these economic times.

 

2. Out of Community of Property without accrual

Spouses that are married out of community of property have full contractual capacity. The spouses act independently from each other and there is a complete separation of their property.

Two separate estates will exist in law and each party may deal with their estate as they wish. At death or divorce there is no sharing in each other’s wealth.

Should one of the spouses be declared insolvent and/or be sequestrated, the other spouse will be protected against such an insolvency.

 

3. Out of Community of Property with accrual

Spouses that are married out of community of property have full contractual capacity. The spouses act independently from each other and each one signs documents pertaining to the registration process completely independently from the other.

All the property and debt acquired before the date of the marriage will remain that person’s property and debt, but there is a fair sharing of profits and losses made during the marriage.

“Accrual” is the growth of the estate of each spouse during the existence of the marriage. Both spouses will need to keep records of their cash flow and property acquired during the marriage.

At death or divorce the nett increases of each estate are added up and divided equally. The spouse whose estate shows no- or a smaller accrual is entitled to half of the difference between the accrual of both estates.

Should one of the spouses be declared insolvent and/or be sequestrated, the other spouse will be protected against such an insolvency.

 

When must an Antenuptial Agreement be signed?

Answer: An Antenuptial Agreement must be signed before you get married.

What if our wedding is around the corner and our time is limited to arrange for an Antenuptial Agreement?

Answer: We will be able to assist you no matter where in South Africa you are situated, and make the necessary arrangements to ensure that you and your fiancé’s interests are protected.

Contact us for additional information Antenuptial marriage contracts services

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