As a notary public and marriage officer, I often get asked questions about the Antenuptial agreements and the impact thereof on your finances. To answer these questions, it is important to understand WHY we draft antenuptial agreements.
Antenuptial contracts have at its core the purpose to change the automatic financial consequences of marriage. For example: Should one of the spouses undertake a business venture, an Antenuptial agreement will allow for the protection of combined assets of both spouses from creditors. Such an agreement also enables each spouse to retain his or her individual financial identity.
An antenuptial contract must
- Be entered into before the marriage is concluded.
- Be signed before a notary and two witnesses.
- Must be registered in the Deeds Office.
If you get married without entering a contract, then the marriage will automatically be in community of property (COP). This means that all your assets and liabilities pre- and post-marriage falls into a single joint estate, in which you have an equal share (50/50).
A marriage out of community of property is achieved by drawing up an antenuptial contract (ANC). If you decide to get married out of community of property, you will have to make a choice of whether you want the accrual system included or excluded.
The term 'accrual' is used to denote the net increase in value of a spouse's estate since the date of marriage. In other words, what was yours before the marriage remains yours, and what you have earned during the marriage belongs to both of you, and get divided on date of divorce or death, as you contributed to the marriage.
If you decide not to have the accrual system in your marriage, it will have the implication that each spouse retains the assets and liabilities that they have prior and after the marriage as their own, without any share to the spouse.
It is important to sit down with your notary (attorney) prior to the marriage and discuss your options and what will be the best for your marriage.