Antenuptial agreement

About this antenuptial agreement

A prenuptial agreement sets out how assets and liabilities will be divided if you separate permanently or if your marriage ends.

Making a plan in advance should help you avoid expensive divorce settlements, help you keep items of sentimental value such as family heirlooms or property, and help you control who inherits your wealth.

Many people consider planning for break-up unromantic shortly before a wedding or civil union. However, preparing a antenuptial agreement emphasise that the reason for marriage is love and not money, and can give both people confidence about what will happen should the marriage fail.

Why use this antenuptial agreement

• ensures the parties marry out of community of property (without accrual i.e. any increase or decrease in wealth or property of one party after marriage is not shared by the other party )
• provides security during and after marriage to both people;
• avoids future disputes over how assets should be split and what each person contributed;
• helps speed up the divorce process and saves divorce costs;
• helps ensure that items with sentimental value remain with the person to whom they matter most;
• helps ensure that the people you choose (such as children from an earlier relationship) inherit your wealth;
• prevents your wealth from being given away shortly before break-up;
• helps protect business assets from being split and sold;
• makes a separation less emotionally stressful by removing the need to negotiate over as many things.

Is an antenuptial legally binding?

This agreement has been drawn to exclude “ community of property”. A marriage in community of property means that all assets and liabilities of either spouse will automatically become part of the joint estate upon marriage. To marry out of community of property means that whatever assets are owned by the parties before or during the marriage remain the property of the individual.

Since the enactment of the Matrimonial Property Act 1984, the main purpose of the ante-nuptial agreement has been to exclude community of property So, if you don’t draw up an ante nuptial agreement in South Africa then your marriage automatically defaults to ‘in community of property.

Ante-nuptial agreements are enforceable in South Africa.  However, the agreement must be attested by the Notary and it must be registered with in three month in a deeds registry.