WHAT IS AN ANTENUPTIAL CONTRACT
WHAT IS AN ANTENUPTIAL CONTRACT?
An antenuptial contract is a contract entered into by the parties before their marriage in order to determine the matrimonial property system which will be applicable to their marriage.
WHAT ARE THE MATRIMONIAL PROPERTY SYSTEMS?
There are 3 different types of matrimonial property systems in South Africa.
1. In community of property
Both parties have undivided half shares in the joint estate of the parties.
In simplistic terms: everything is shared 50-50 including debt.
2. Out of community of property including the accrual
The parties enjoy full control over their own separate estates, however on dissolution of marriage a calculation is done to see the growth in the estates and that estate which has grown more than the other, has to contribute a portion of the accrual to the other estate.
Two parties, A and B, are married out of community of property including the accrual, and both estates are nil at conclusion of the marriage.
At the dissolution of the marriage, party A’s estate is worth R100 000 and party B’s estate is worth R50 000. This means that party A’s estate has grown by R50 000 more than party B and party A will therefore have to contribute R25 000 from the accrual so that the estates each enjoy R75 000 growth overall.
3. Out of community of property excluding the accrual
Each party retains full control of their individual estates. The estates are completely separate and neither has any bearing on the other.
WHAT SYSTEM IS APPLICABLE IN SOUTH AFRICA?
In South Africa, marriages are automatically in community of property unless an antenuptial contract is concluded. Should you wish to have one of the other matrimonial property systems applicable to your marriage then an antenuptial contract should be entered into and registered in the Deeds Office before your marriage.
WHO DOES AN ANTENUPTIAL CONTRACT?
An antenuptial contract is done by a Notary who will explain the different matrimonial property systems in order to help you to decide on the best system for yourselves.
1. Meeting with Notary to discuss the different matrimonial property systems;
2. Decide on a system and provide the relevant information;
3. Contract will be drafted for signature;
4. Appear in front of the notary to sign documents;
(can be done by a third party with a special power of attorney)
5. Contract assigned a protocol number and lodged in Deeds Office;
6. Contract registered in Deeds office and original collected;
7. Client to collect and sign for contract.
WHAT DOCUMENTS ARE REQUIRED:
- ID of both parties;
- List of assets and asset value;
- Special Power of Attorney, which will be supplied to the parties where necessary.