17 Jan Before You say “I do”
All you need to know about Ante-nuptial contracts.
It’s the month of love and time to embrace all things wedding-related. Perhaps you are on the hunt for a venue, eagerly planning your big day. Or as a bridesmaid, you’re helping the bride remember the hundreds of things she needs to sort out. In between all the dress fittings and cake tastings and table décor, there is a very important legal consideration to keep in mind: what matrimonial property system will govern your marriage or civil union after the big day?
While it’s hardly the stuff of romantic movies, deciding on whether to register an ante-nuptial contract (ANC) and if so, what system to apply, will dictate how your assets are regulated for the rest of your marriage. And it has far-reaching consequences.
IN COMMUNITY OF PROPERTY
If you simply get married without first concluding an ANC, you and your spouse will automatically be married in community of property. In short, everything you own and everything you owe become one bundle and the unbundling (on death or divorce) is a difficult process. More so, you will need your spouse’s consent (and credit score) when buying or loaning any major asset (like a bond on a house or a new car) and you will become undivided co-owners of any asset. Changing your marriage system to one out of community of property after the marriage is a lengthy and costly process, which includes an application to the high court.
OUT OF COMMUNITY OF PROPERTY
If you decide to register an ANC, you will be married out of community of property. You can choose whether to have the accrual system apply. If not, each spouse keeps everything they had before the marriage or civil union as well as everything they acquire during the marriage, on death or divorce (what’s yours is yours, what’s mine is mine).
OUT OF COMMUNITY OF PROPERTY WITH ACCRUAL
If the accrual system does apply, the spouses should choose what assets they want to include or exclude, and on death or divorce, the spouse whose assets grew the least will have a claim for half of the assets of the spouse whose estate grew the most. Keep in mind that things like inheritance, lottery winnings, or certain compensation awards are usually excluded from this calculation. The accrual is also only calculated if the marriage is dissolved and you cannot claim your share of the joint estate while you’re still married.
Having an ANC in place ensures that you and your spouse are separate legal entities, which means you are protected from your spouse’s creditors. So, for example, if you are married in community of property, and one incurs debts in establishing a business, spouses would be jointly responsible for paying back those debts. An ANC will protect both of you against that.
WHEN SHOULD I DECIDE?
Very importantly, an ANC must be signed with a Notary (a specialised attorney) before you get legally married. It will then be registered in the Deeds Office as a formal document (within 3 months).
BUT I LOVE MY FIANCE!
The decision to register an ANC shouldn’t be seen as preparation to protect you in a divorce, but rather as a mature decision between two adults wanting to make legally sound decisions about the way their assets will be dealt with once the confetti has blown away. ANCs allow spouses to tailor-make their very own matrimonial property regime, provide the spouses with contractual freedom in the future, and protect the assets of the other spouse against potential creditors. For this reason, both potential spouses should consult the notary who’s drawing up the ANC – because both parties need to be fully aware of its consequences.