Guest Article: The Purpose and Effect of an Antenuptial Contract

In South Africa, when two people decide to enter into a marriage, the prospective spouses must decide whether they want their marriage to be in-or out of community of property. If they decide to get married in community of property, the assets of both estates will form part of one joint estate.

If spouses do not wish to be married in community of property and want to exclude certain assets from the joint estate, or exclude one spouse’s liability for the other’s debt, they would have to enter into an antenuptial contract. The Purpose of an antenuptial contract is to deviate from the common law or statutory rules regarding the matrimonial property consequences of marriage.

What is an antenuptial contract

An antenuptial contract is a formal contract that is executed before a notary and registered at the Deeds Office in terms of the Deeds Registries Act. It is seen an agreement that is binding on the prospective spouses, and when registered it is binding and valid against third parties. Any antenuptial contract that is executed in South Africa must be attested by a Notary and must be registered in the Deeds office within 3 months if it’s execution. Should the parties fail to comply with these formalities then the antenuptial contract will have no effect and would have no force on the parties to the contract. Should this happen, the High Court may be approached by way of application to have the contract registered.

But one might be asking what the contents should be of an antenuptial contract and what aspects can an antenuptial contract regulate? Most importantly, an antenuptial contract must indicate the chosen matrimonial property system that the spouses wish to marry in to. Most antenuptial contracts cater for the separation of property, instead of in community of property.

An antenuptial contract might also include a clause that deals with the right of recourse in respect of household necessaries. Even if the spouses are married out of community of property, according to section 23 of the Matrimonial Property Act, spouses are jointly and severally liable for the debts for household necessaries. If the marriage was concluded before the operation of the Matrimonial Property Act, and if one spouse contributed more than the other, that spouse will have an automatic right of recourse against the other spouse. If the marriage was concluded after the coming into operation of the Matrimonial Property Act then there is no automatic recourse for spouses, yet the spouses can still agree on having a right of recourse against each other for household necessaries.

What clauses can be included

Another clause that may be included in an antenuptial contract is a clause that deals with the devolution of the spouses’ estate if one spouse passes away. For instance, an antenuptial contract may stipulate that the surviving spouse will be the sole heir to the estate upon the death of the first spouse, or it can stipulate that upon the death of the first spouse the estate of both spouses will devolve on their children. This clause has the same scope as a will, but it is contractual in nature and therefore can only be amended by a will which is made jointly by both spouses. If the spouses do make a joint will, the surviving spouse will have the option to inherit in terms of the antenuptial contract or the will.

Spouses may also choose to include marriage settlements in their antenuptial contract. A Marriage settlement is a donation which one spouses undertakes make to the other, usually subjected to certain conditions. For instance, a husband can stipulate that he will transfer a sum of money to his wife upon the birth of their first child. It is advised to include a reversion clause whenever marriage settlements are included in an antenuptial contract. A reversion clause stipulates an event upon which the settlement will revert back to the donor, for example if the beneficiary passes away before the donor or if the parties get divorced.

Great care must be taken when drafting an antenuptial contract, as it does have the power to regulate many aspects of a marriage.

This article was brought to you by SLKB Attorneys – A Member of the Austrian Business Chamber

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