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antenuptial agreements

When two people are planning their wedding the last thing they want to think about is dissolution of the intended marriage by divorce or death. The consequences of not obtaining proper legal advice before getting married can however have disastrous results.

If you get married without an antenuptial agreement, you will be married in community of property and have one joint estate, consisting of both spouses’ assets and liabilities that accumulated prior to and during the marriage.

One of the most significant disadvantages of a marriage in community of property is that when a debt is due to a creditor by one of the spouses, the joint estate is liable to pay the debt and payment can accordingly be enforced against both spouses. Another disadvantage is that the law places certain restrictions on the ability of a spouse married in community of property to conclude contracts on his or her own.

Before getting married, the first step is to consult with us to advise you on the different marital agreements available and guide you on how to best structure your antenuptial agreement. Your attorney will then prepare the antenuptial agreement and once you are satisfied with the content, it will be signed and then registered at the Deeds Office. It is very important that the antenuptial agreement is signed prior to the conclusion of the marriage.
Our antenuptial agreement services include: -
Advice on which marital agreement is right for you.
Drafting and registering of antenuptial agreements.
Drafting and registering of postnuptial agreements. This includes applying to court for an order to allow registration.
International antenuptial and postnuptial agreements.
FREQUENTLY ASKED QUESTIONS
What are the different marital regimes?
Married in community of property

Our law presumes that all marriages are in community of property.

When a marriage is concluded the two spouses become co-owners in undivided and indivisible half shares of all the assets and liabilities that they have at the time of their marriage as well as all the assets and liabilities they will acquire during the marriage. On dissolution of the marriage, all liabilities are settled from the joint estate and the balance of the joint estate is then distributed equally between the spouses.

Marriage out of community of property (with the accrual system)

Should two parties conclude an antenuptial agreement before getting married, the legal effect is that the community of property and loss is excluded from the marriage, subject to the accrual system. At dissolution of the marriage the spouses will share in the growth their estates have shown, without there having been a joint estate during the subsistence of the marriage.

Marriage out of community of property (without the accrual system)

At dissolution of the marriage each spouse retains the estate he or she had before the marriage as well as everything they have acquired during the marriage.
Must the accrual system be specifically excluded from our marriage out of community of property and profit and loss?
Yes, the accrual system must be specifically excluded in the antenuptial agreement. If not specifically excluded, it is deemed to be included.
Wat does accrual mean?
Accrual only comes into operation at dissolution of the marriage. At dissolution, the growth in the spouses’ respective estates are calculated. The spouse who had no growth or a smaller growth in his/her estate, will have a claim against the other spouse equal to 50% of the difference in growth.
Must all assets be taken into consideration for the accrual calculation?
An asset can be specifically excluded in the antenuptial agreement and will then not be included in its owner’s estate for purposes of the accrual calculation.
Will an inheritance form part of my estate for purposes of the calculation of the accrual?
No. Any inheritance, legacy or donation received during the marriage will not form part of the parties’ estates when calculating the accrual.
Can the antenuptial agreement be cancelled or amended after our marriage was concluded?
This can only be done by obtaining a High Court order and not merely by agreement between the parties.