1. The default marriage system in South Africa
In South Africa, where parties do not enter into a valid antenuptial contract before their date of marriage, they are automatically married in community of property. An antenuptial contract excludes the community of property and profit and loss, and determines whether the accrual system will apply to the intended marriage or not.
2. A valid antenuptial contract
Where parties do not wish to be married in community of property, they will enter into an antenuptial contract, which will specifically state that they are married out of community of property and profit and loss.
The parties to an antenuptial contract may include any clause in the contract that is not prohibited by law and is not against public policy. Clauses that are prohibited may not be included in the contract, and if they are included, will be regarded as null and void. Prohibited clauses may include the following:
· A promise by a spouse to convert to the religion of the other spouse;
· Marital disputes will be resolved by arbitration;
· Retaining marital power;
· That the spouses will not live together after marriage;
· Permission to commit adultery;
· That a wife will stop working and become a housewife upon the birth of a first child;
· That one spouse will not be responsible for household necessities;
· Requiring a certain number of children to be born within a specified time period.
An antenuptial agreement can only be executed by an admitted and practising notary public. The antenuptial contract must take on the required notarial form, and must be signed by both parties to the marriage, in the presence of the notary public, before the date of marriage.
Although an antenuptial agreement must be signed by the parties prior to the date of marriage, the contract can be registered within 3 months of date of signature.
Antenuptial contracts may be registered in any deeds registry in South Africa.
3. The Accrual
When an antenuptial contract is entered into, the contract must specifically state whether the marriage is subject to the accrual or not. The accrual of the estate of a spouse can be defined as the growth that the estate showed during the marriage. Only once the marriage is dissolved, through death or divorce, will the accrual be calculated and shared between the spouses.
The spouse whose estate shows no accrual (growth) or a smaller accrual will have a claim against the estate of the spouse who shows a larger accrual. The claim will be for half the difference between the two accruals.
4. Amending an antenuptial contract
An antenuptial contract may be amended or even cancelled before the date of marriage, as the contract will only become effective once the marriage has been solemnised.
Once the marriage has taken place, an antenuptial contract may only be amended by way of a court order, and only if the court finds that there are valid reasons to amend the antenuptial contract.
Contact JVN Incorporated to enquire about the drafting, registration and amendments of antenuptial contracts.
