The first misconception that needs dispelling, is that when one enters into an Antenuptial Contract, one is pre-empting a divorce. This is not the case. The main reason for entering into an ANC is to protect the estate of one’s spouse in the event that one accumulates debt and has creditors wanting to attach any of one’s property/assets.
Having an ANC constitutes a marriage out of community of property. Therefore, each spouse becomes liable for his/her own assets and liabilities.
The ANC has to be signed prior to the marriage taking place. It is registered at a Deeds Office and it usually takes about 3 months before the ANC is registered and returned to one.
There are essentially two types of ANCs into which one can enter; with accrual or without accrual. The ANC comes into force at the dissolution of a marriage, either by death or divorce.
With the Accrual System
Upon dissolution of a marriage, the growth of each spouse’s estate during the course of the marriage is compared. The spouse whose estate shows the least growth has a claim to 50% of the difference of the other spouse’s estate. For example – At the dissolution of the marriage the Husband’s estate shows a growth of R100 000.00, whereas the Wife’s estate shows a growth of R150 000.00. The Husband will therefore have a claim to 50% of the difference, being 50% of R50 000.00, i.e. R25 000,00 from the Wife’s estate.
Without the Accrual System
Upon dissolution of a marriage, each party will have only what they had accumulated during the duration of the marriage. No claim can be made by either spouse to the other spouse’s estate.
Common Questions that are asked about ANCs:-
Does the ANC affect my Will?
No. The ANC deals only with the estates of the spouses in relation to each other at the dissolution of the marriage (either death or divorce), whereas a Will, is applicable at the death of a party and will take into consideration all the assets and how a distribution should be done.
Do I need my spouse’s consent to open a bank account or sell property?
No. Registering an ANC means that the marriage is out of community of property and each spouse’s estate is seen as being a separate and individual estate. Hence , each party will be able to deal with his/her affairs separately and without the consent of the other party, unless the property is registered in both parties’ names.
Can we buy property together?
Yes. The property will be registered in both parties’ names in either a 50 / 50 share or undivided half shares.
Getting married is an exciting time but one needs to ensure that before getting married one understands the different marriage regimes and makes the correct choice, bearing in mind that if an ANC is not entered into, the marriage will automatically be governed by the laws of Community of Property.
Killindrie Pillay, Professional Assistant – Lanham-Love Attorneys
