The importance of an ante-nuptial contract

01 November 2023 148

An ante-nuptial contract (ANC) is a legal document in South Africa that serves several important purposes related to the financial and property rights of individuals who are about to get married. The primary purpose of an ante-nuptial contract in South Africa is to outline how the assets and liabilities of each spouse will be managed during the marriage and what will happen in the event of divorce or the death of one of the spouses. Here are some of the key purposes and benefits of an ANC:

1. Asset Protection: An ANC allows individuals to protect their pre-marital assets and prevent them from becoming part of the communal property regime, which is the default matrimonial property system in South Africa. Without an ANC, assets acquired during the marriage are typically considered jointly owned, and spouses may have equal claims to these assets in the event of divorce or death.

2. Debt Protection: An ANC can help protect one spouse from the debts of the other spouse incurred before or during the marriage. It can specify that each spouse is responsible for their own pre-marital debts and prevent the creditors of one spouse from going after the assets of the other spouse.

3. Inheritance Planning: An ANC can also address inheritance issues. It can clarify how the assets of a deceased spouse will be distributed and whether they will go to the surviving spouse or to other beneficiaries, such as children from previous marriages.

4. Clarity in Case of Divorce: In case of divorce, an ANC can provide clarity on the division of assets and liabilities. It can specify how property acquired during the marriage will be divided and whether spousal support or maintenance is agreed upon.

5. Flexibility: The terms of an ANC can be customized to the specific needs and wishes of the couple, making it a flexible tool for financial planning and asset protection.

It's important to note that South Africa has two types of ante-nuptial contracts:

1. Ante-nuptial contract with accrual: This contract outlines how the increase in the net value of the joint estate during the marriage will be shared between the spouses upon divorce or death.

2. Ante-nuptial contract without accrual: This contract keeps the financial affairs of the spouses completely separate, and there is no sharing of the increase in the joint estate. Each spouse retains ownership and control over their own assets and liabilities.

Couples can choose the type of ante-nuptial contract that best suits their needs and preferences. Clients should consult with a notary (a specialised attorney), as it is a requirement that a notary draft and execute the ANC.

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