An Ante Nuptial Contract is an agreement entered into between two parties prior to their marriage and is often referred to as a “prenuptial” or an ANC.

When entering into this agreement, the spouses to be decide to exclude the system of Community of property from their marriage and then choose to get married OUT of community of property.

Spouses who fail or worse, forget, to draft this agreement and have it signed before the actual marriage ceremony, is automatically married IN community of property.  We have heard horrible stories about spouses assuming that the pastor can make a note on the marriage certificate to confirm their choice, and who then realises (too late) that their marital regime is now automatically in community of property.

When drafting an ANC, the parties will choose whether they want to have the accrual system applicable to their marriage or not.  A later article in this regard.

There is protection provided by law to spouses when they marry with an ANC, and therefore the following benefits are noteworthy:

• If either party is declared insolvent, the other spouse is protected from the insolvent spouse’s creditors;
• An Ante Nuptial Contract can be drafted in such a way so as to cater for your unique and individual circumstance.
• The respective spouses will not be held liable for any debt that the other spouse might have incurred prior to the marriage;
• Spouses will not be held liable for any debt that the other spouse may incur during the marriage;
• Assets that, for sentimental or financial reasons, the spouses do not want to form part of a joint estate can remain separate;
• Spouses will not need to obtain each other’s consent when dealing with their own property.
• Ante Nuptial contracts remove the risk in regard to all the spouses combined assets, should one of the spouses undertake a business venture, allowing for the protection of assets from creditors;
• Each spouse is able to retain his or her individual financial identity.

It is important for spouses to note that the drafting of their will or at least estate planning is important when they arrive at the stage of drafting an ANC, and we recommend that these two documents are drafted together.