Antenuptial agreement: protection of property
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About this antenuptial agreement
Nobody enters into marriage or civil union expecting it to end. However, all relationships change over time, usually in circumstances that no-one can foresee. Sometimes it is prudent to plan for the worst in the expectation that it won't occur.
This simple pre-marital agreement states that each party will retain the assets, property and possessions he and she each owned when he and she entered into marriage. It has been written for couples for whom financial support from the other is less important, perhaps because the partners have already accumulated enough wealth during their lifetimes to support themselves independently. The document seeks to protect ownership of that wealth, not to ensure one is supported by the other.
Of course, the agreement does provide for assets jointly bought, full disclosure and other elements crucial to acceptability by a court.
Why use this antenuptial agreement
- ensures the parties marry out of community of property(without accrual i.e. any increase or decrease in estate of one party after marriage is not shared by the other party );
- provides security during and after marriage to both people;
- avoid future disputes over how assets should be split and what each person contributed;
- saves legal costs;
- 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 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.
We also stock another antenuptial agreement which covers a much wider range of possible outcomes and which also deals with matters to be agreed during your marriage.
That alternative version enables you to define your intentions over broader areas. There is extensive coverage of property, possessions, investments.
Children arrangements are included, but covered broadly and shortly, because circumstances at divorce can be very different to those at marriage and a judge will make an order based on what he sees at the time.
This agreement covers the following:
- the parties’ personal details;
- relevant dates and application of principles likely to be required by law;
- that property of each party remains his own;
- prevention of one person reducing joint wealth before separation by giving away assets;
- what should happen if one of you should die.
This document was written by an attorney for Net Lawman. It complies with current South African law.
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