Are you getting married? Congratulations!
Consider the benefits of signing an ANC before your wedding day.
An antenuptial contract (in short referred to as an “ANC”), also known as a “prenup agreement”, is a legal agreement that is entered into by two people before they get married. The purpose of an ANC is to help a couple plan and agree on the terms and conditions of their financial future when married, including the division of assets and liabilities in the event of divorce or separation. An ANC is essential and especially recommended if any party already has children, business interests or owns substantial assets.
In South Africa, an ANC is recognised as a valid legal document that can be used to protect the assets and interests of both parties in the event of divorce, separation and other circumstances.
The benefits of concluding an ANC before a civil marriage in South Africa include:
- Protection of assets: An ANC can be used to protect the assets as an ANC separates the couple’s estates. This means, for instance, that one party cannot be held liable for the debt of the other party, unless they have taken out the debt jointly or a spouse provided security for the debt of the other spouse. An ANC can also protect assets, such as properties and investments, of both parties, in the event of divorce or separation.
- Avoiding litigation: An ANC gives certainty and can help avoid litigation in the event of divorce or separation. By setting out the terms and conditions of the marriage in advance, an ANC can help to minimise the potential for disputes and reduce the likelihood of costly legal proceedings.
- Clarification of responsibilities: An ANCE can be used to clarify the responsibilities and obligations of both parties during the marriage. This can include financial responsibilities, as well as other obligations such as child care and household responsibilities.
- Protection of business interests: An ANC is especially recommended to protect the business interests of one or both parties. This can include provisions for the protection of intellectual property, the division of business assets, and the protection of the business in the event of divorce or separation.
An ANC means that the couple will automatically marry without community of property. An ANC further provides for such marriages with the accrual system or without the accrual system. What does this mean? If your ANC provides for marriage without the accrual system, each party keeps what is theirs before marriage and also keeps what becomes theirs after marriage. If the ANC provides for a marriage with the accrual system, each party still retains their own estate, but the contract will also determine how the growth in each party’s estate during the marriage will be shared in the event of a divorce.
An ANC must be signed by both parties in the presence of an attorney who is also a Notary. It must be signed before the official wedding day and lodged at the Deeds Office within 3 months after signing. If no ANC is concluded before the official wedding day, the couple is automatically married in community of property. This means that the couple’s separate estates merge and become a single estate after their official wedding. To change your marriage system is costly as it will require a formal application to the High Court.
In conclusion, an ANC can provide many benefits to couples who are planning to get married in South Africa. By setting out the terms and conditions of the marriage in advance, an ANC can help to protect the assets and interests of both parties, avoid disputes and litigation, clarify responsibilities and obligations, and protect business interests. It is important to consult with a family law attorney who is also a Notary to ensure that the ANC is drafted in accordance with South African law and is enforceable in the event of divorce or financial conflicts.