Community of property is the primary matrimonial property system in South Africa. It will be an automatic consequence of your marriage if you do not exclude it by way of an antenuptial agreement. An antenuptial contract is an essential document that, under South African law, determines whether your marriage will exist in community of property or out of community of property, with or without the accrual system. It is a written contract between two people who are about to marry, setting out the terms of possession of assets, treatment of future earnings, control of the property of each, and potential division if the marriage is later dissolved by either death or divorce. There are two different types of antenuptial contracts which parties may consider:
- The ANC without accrual
This is where the assets acquired before or during the marriage remain separate throughout the course of the marriage. Assets and profits are not shared and each partner has a separate estate. - The ANC with the accrual (with due acknowledgement to the Law Society of South Africa)
During the marriage each spouse retains control of his or her own property, builds up his or her own estate and each is responsible for his or her own debts. However on dissolution of the marriage by death or divorce, the value of the assets obtained during the marriage (the accrual) will be shared equally. The accrual is determined by calculating the difference in the net starting value and the net final value of the estate of each spouse with the exclusion of inheritances, legacies and donations. On dissolution of the marriage the value of the difference in the accrual of the two estates, taking inflation into account, is then divided equally. The Act enables each spouse to share in the accrual but also protects creditors.
Only an admitted and practicing Notary may execute an antenuptial contract. The Notary executing the contract must not have a personal interest in the contract and must, in particular, not be closely related to one of the intended spouses either.
An antenuptial contract deals with how assets and liabilities will be handled between the intended spouses as a couple and between the couple and third parties. It is not mandatory for a couple to enter into an antenuptial contract however if they choose not to then their marriage will be that of one in community of property. This might have unintended consequences for the spouses that they are not aware of. “Ante” means “before” and”Nuptial” means marriage and therefore it is important to note that an antenuptial contract has to be executed before the wedding of the intended spouses. The legislature and Courts both place special reliance on Notarial acts and the basic notarial qualification is regarded as elevating the basic standard expertise of the average Attorney.
Furthermore it is essential that the antenuptial contract is registered at the Deeds office within 3 months from date of execution of the agreement. If however the intended spouses wish to execute the anteuptial contract outside of the Republic of South Africa then the antenuptial contract must be attested by a Notary or otherwise be entered into in accordance with the law of the place of its execution and must be registered in a deeds registry within 6 months after the date of its execution. The Notarial attestation needs to be legalized. Contracts which are not registered in the Deeds registry within the time period as set out above will have no force or effect against third parties, but however will be valid inter partes.
We usually suggest to Clients that they should visit the office of the Notary at least one month before the scheduled wedding date. The Notary, before drafting the required antenuptial contract, will meet with the couple and explain the different marital regimes in detail. The Notary also has a duty to explain the consequences of each regime and how it will affect the spouses going forward as well as the proprietary consequences of their relationship. It is important for the intended spouses to be open and honest with the Notary regarding their personal circumstances so that the Notary can assist them with suggestions and guidance on which regime would best suit their needs. Furthermore by having an antenuptial contract means that the one spouse will not be liable for the debts incurred by the other spouse either before or during the marriage. The spouses will therefore have freedom to contract as there is no joint indivisible estate.
Furthermore the Antenuptial contract allows the husband and wife to tailor-make their very own matrimonial property regime. They can include any provisions they like in their Antenuptial contract, as long as the provisions are not against the law, good morals of the nature of marriage.
Once the parties have met the Notary and have gone through the various options they would usually make their decision on what works best for them – there is no right or wrong regime however the Clients need to see which option would work best in their personal circumstances. The Notary would usually then draft the antenuptial contract in accordance with the Clients wishes before contacting them to come in again so that all can be explained to them. Once the parties are happy with the intended contract they will need to execute the antenuptial contract in duplicate and in front of the Notary Public and two witnesses. Two competent witnesses must attest the parties’ signatures. A Person above the age of 14 years who is able and competent to deliver evidence in court, qualifies as a competent witness. The one originally signed antenuptial contract remains filed in the Notary Public’s protocol. Documents certified by notaries are sealed with the notary’s seal or stamp and are recorded by the notary in a register (also called a “protocol”) maintained and permanently kept by him or her. These are known as “notarial acts”. The remaining original is lodged and registered at the Registrar of Deeds in the province of South Africa where the parties usually reside. Once registered the Antenuptial contract is recorded in the Deeds Registry and therefore should a third party wish to enquire as to the status of one of the spouses they will see that the spouses are married out of community of property.
If you are contemplating getting married in the near future, we highly recommend that you and your intended spouse make an appointment with a Notary in order to advise you on the options available to you and assist you in making a decision as to the marital regime which will be best suited to you.
C & A Friedlander Inc.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted. (E&OE)