An Ante Nuptial Contract (ANC) is arguably one of the most critical documents that a person will sign in their lifetime with far reaching implications for the estate of the signatories.
The ANC determines the matrimonial property regime which will govern ones marriage and so needs to be finalised before the marriage day. With so many decisions to be made prior to the wedding day the ANC is often not afforded the appropriate level of priority with potentially severe consequences for your future. The mere fact that such a contract needs to be signed in the presence of a Notary as well as two competent witnesses and formally registered at your local Deed’s Office is indicative of its importance.
Contrary to common belief, a contract of this nature should never be a standardised template which is presented to you for signing at nominal cost and devoid of specific reference to your particular estate and needs. It is frightening the number of ANC’s which are executed without the attorney even having an in-depth consultation with the couple to establish their specific needs or requirements. The ANC is definitely not a “one-size-fits-all”. This contract should rather be a tailored reflection of the lifestyle and financial plan you choose as newlyweds. The varying costs of ANC’s should be perceived as an investment in the protection of your rights and should be viewed in light of the security it brings to your future as individuals as well as the future you will share as a couple.
There are three matrimonial property regimes in South Africa:
Marriage in community of property
This is the default system which will govern your marriage should you fail to conclude an ANC.
A joint estate is formed upon marriage and both parties’ assets and liabilities fall into this joint estate. It is irrelevant whether the assets or liabilities were acquired before or during the marriage. The essence of being married in community of property is that “What is mine is ours, what is yours is ours”.
Negative effects of this system include that your spouse’s creditors could attach assets which belong to the joint estate and your contractual independence is limited.
Marriage out of Community of property without Accrual
This regime is governed by an ANC. It ensures that your estate is maintained separately from the estate of your spouse i.e. “What is mine is mine, What is yours is yours”. You are afforded contractual independence and your respective estates are, for the most part, impenetrable from each other’s creditors.
Marriage out of Community of property with Accrual
In 1984 The Matrimonial Property Act introduced the concept of Accrual system into South African law.
The Accrual system allows for a form of financial protection, gives both parties their contractual independence and at the same time protects the spouses, for the most part, from each other’s creditors.
Remember: Planning is critical in life:
“Someone’s sitting in the shade today because someone planted a tree a long time ago”.