From casual and at times heated conversations that I have had, I could not help but note that a number of people attach an adverse sentimental attitude on the conclusion of an ante nuptial contract prior to a couple getting married, some are not even privy to the existence of such a contract, for them, getting married is a matter of doing so in community of property– anything less or different invokes an eyebrow rising attitude as to whether one is sincerely committed enough to the marriage or better yet, if they “really love” them enough.
The purpose of this article is to explore benefits of concluding an ante nuptial contract and from there, if one will wants to look at it from a different perspective, it will simultaneously be apparent what are the reasons for not concluding any.
WHAT IS AN ANTE NUPTIAL CONTRACT?
An ante nuptial contract is a contract entered into by two people who intend to get married shortly after concluding and legally registering such a contract. The contract will then regulate at most, the financial position of the couple once they are legally married.
In South Africa, the default marriage system is one in community of property, this means that, your partner’s assets, debts, liabilities, literally everything will have an impact on you, financially or otherwise and you do not have a say on whether you want to accept that or not– unless you conclude an ante nuptial contract before getting married.
HERE ARE THE BENEFITS OF CONCLUDING AN ANTE NUPTIAL CONTRACT:
• The debts that your partner may incur, whether it is before or during your marriage will not be your burden and will not impact you. This may sound ideal to people who happen to find themselves “unknowingly” married to partners who have poor to non-existent financial judgement. In essence, entering into an ante nuptial contract will mean that your spouses’ poor financial decisions will be for their own account.
Any assets a spouse holds dear or for financial reasons may remain their own, they will not have to share ownership or entitlement rights with anyone, such assets can be specified in the contract and will then remain excluded from the joint and or accrual system.
• When you are married in community of property, for many transactions that you make, you will need the consent and or permission of your spouse because what you do will impact them as well, however, in a case of having concluded an ante nuptial contract, you have full and unlimited control and authority over your affairs, you do not require the consent of your spouse in order to conduct their day to day dealings with your exclusive assets.
• With regard to business persons and or entrepreneurs who often venture into risky business ventures that may have dire financial liabilities and setbacks, concluding an ante nuptial contract will to an extent protect
the financial interests they hold in the business as well as protect their spouse’s assets, should the business fair badly. This is ideal because if there is not an ante nuptial contract in place, the business’ liabilities can be claimed from the assets of the spouses in the case of joint system, thus, the creditors can and often will attach those joint assets if the venture is not successful. The sad result is often that an “innocent” spouse will therefore, fall into combined debt or insolvency. This can be easily prevented by concluding an ante nuptial contract.
• As a spouse, you get to retain your own financial identity without anyone having any impact on your credit rating. An ante nuptial contract helps a spouse to retain their own financial standing and build a desirable and good credit rating and financial stability.
Marriage is a beautiful thing, it is even more beautiful when spouses are sensitized to their own preferred system, as such, exploit the legal avenues available to you in order to ensure that you enjoy the best marriage arguably possible with limited hassles.
If you are contemplating getting married in the near future, think about making an appointment with one of our experienced Notaries in order to source the best advice tailored to your unique circumstances and help you make a decision as to the marital regime which will best suit you.
▪ Deeds Registry Act 47 of 1937.