What are Antenuptial Contracts and How to Register an ANC in South Africa?
What are Antenuptial Contracts?
When planning a marriage, couples often focus on the big day and their future together. However, one crucial legal consideration before tying the knot is deciding how their assets and liabilities will be managed during the marriage. This is where antenuptial contracts (ANCs) come into play.
An antenuptial contract, also known as a prenuptial agreement, is a legally binding document signed by two parties before marriage. It outlines how their assets, liabilities, and financial matters will be handled during the marriage and in the event of a divorce or death. Essentially, it allows couples to define the terms of their marital property regime.
In South Africa, there are three main marital property regimes:
- In Community of Property:
- If no antenuptial contract is signed, the marriage is automatically in community of property. This means that all assets and liabilities are jointly owned and shared equally by both spouses.
- Out of Community of Property without Accrual:
- This regime ensures complete separation of assets and liabilities. Each spouse retains ownership of their respective property acquired before and during the marriage, with no claim on each other’s assets in the event of divorce or death.
- Out of Community of Property with Accrual:
- This regime allows for the separate ownership of assets during the marriage but provides for the sharing of any growth in the couple’s combined wealth accumulated during the marriage.
An antenuptial contract is required to adopt the “out of community of property” regime, either with or without accrual.
Why Do Couples Choose an Antenuptial Contract?
Couples opt for antenuptial contracts for various reasons, including:
- Protecting Individual Assets: Ensuring that property owned before the marriage remains with the original owner.
- Avoiding Shared Debt: Preventing one spouse from being held liable for the other’s debts.
- Tailored Financial Arrangements: Defining terms that suit the couple’s unique circumstances.
- Ensuring Fair Division: Establishing a framework for dividing assets in case of divorce or death.
How to Register an Antenuptial Contract in South Africa
Registering an antenuptial contract in South Africa is a straightforward process but must comply with specific legal requirements. Here are the steps:
- Consult an Attorney (Notary Public):
- An antenuptial contract must be drafted by an attorney who is a registered notary public. The attorney will explain the different regimes and help you choose the most suitable option for your circumstances.
- Draft and Sign the Contract:
- Once the terms are agreed upon, the notary public will draft the contract. Both parties must sign the contract in the presence of the notary.
- Register the Contract:
- The signed contract must be registered with the Deeds Office within three months of signature. Failure to register the contract within this period will result in the marriage defaulting to the “in community of property” regime.
- Receive a Certified Copy:
- After registration, a certified copy of the contract will be issued. This serves as proof of the agreement.
Important Considerations
- Timing: Ensure the antenuptial contract is signed before the marriage. Once married, it’s too late to change the marital property regime without a court application.
- Legal Advice: Seek professional advice to ensure the contract aligns with your needs and complies with legal requirements.
- Costs: Budget for legal and registration fees associated with drafting and registering the contract.
Antenuptial contracts are an essential tool for couples in South Africa to define their financial and property arrangements. By understanding the options and following the correct registration process, couples can ensure their financial interests are protected and avoid potential disputes in the future. At PM Attorneys, we specialise in drafting and registering antenuptial contracts tailored to your unique needs. Contact us today for expert legal advice and assistance.