What Is an Ante-Nuptial Contract?
An Ante-Nuptial Contract (ANC) is a legal agreement entered into by two people before they get married. It determines the matrimonial property regime that will govern their marriage and sets out how their assets, liabilities and financial interests will be dealt with during the marriage and, where applicable, when the marriage ends.
An ANC can provide clarity and certainty regarding the parties’ financial rights and obligations and can be particularly important where either party has existing assets, business interests, family wealth or other financial obligations.
An ANC must be properly executed and registered in accordance with the applicable legal requirements.
What Is a Post-Nuptial Contract?
A Post-Nuptial Contract is an agreement entered into by spouses after they are already married to regulate or change their matrimonial property arrangements.
Unlike an ANC, which is concluded before marriage, a Post-Nuptial Contract is considered where the parties are already married and wish to change their matrimonial property regime.
A change to the matrimonial property regime after marriage generally requires an application to the High Court for authorisation in terms of the applicable legislation. The process involves more than simply signing an agreement between the spouses, and proper legal advice is therefore important.
What Are the Different Matrimonial Property Regimes?
South African marriages generally fall into three main matrimonial property regimes.
1. Marriage In Community of Property
Where parties marry in community of property, their estates generally become part of a joint estate.
This means that, subject to the applicable law and exceptions, assets and liabilities acquired before and during the marriage may form part of the joint estate.
Both spouses may therefore have an interest in the joint estate, and certain transactions may require the consent of both spouses.
2. Marriage Out of Community of Property With the Accrual System
Under the accrual system, each spouse generally retains a separate estate during the marriage.
However, when the marriage ends, the growth in the respective estates during the marriage is taken into account in determining the accrual claim.
An ANC is used to regulate the marriage out of community of property with the accrual system and can also provide for certain assets or values to be excluded from the accrual, where legally permissible.
3. Marriage Out of Community of Property Without the Accrual System
Under this regime, each spouse generally retains a separate estate, and there is generally no sharing of the growth in their estates through the accrual system when the marriage ends.
This regime is often considered where parties want a greater degree of financial independence from one another.
The terms of the ANC are particularly important because they determine the contractual arrangements between the spouses, subject to applicable law.
When Should an Ante-Nuptial Contract Be Signed?
An ANC must be entered into before the marriage is solemnised.
It should therefore be attended to well before the wedding rather than being left until the last minute.
The parties should obtain legal advice early enough to allow the contract to be prepared, reviewed, signed and properly executed and registered.
Where Is an Ante-Nuptial Contract Signed and Registered?
An ANC is prepared by a Notary and is executed before a Notary Public.
The contract must then be registered in the appropriate Deeds Registry within the prescribed period in order to have the required legal effect against third parties.
The registration process is therefore an important part of the ANC process.
Can an ANC Be Signed After the Wedding?
Generally, no. An ANC is specifically a contract entered into before marriage.
If parties have already married without an ANC and wish to change their matrimonial property regime, they may need to follow the legal process for changing their matrimonial property system after marriage.
This is where a Post-Nuptial Contract and High Court application may become relevant.
Can Married Couples Change Their Matrimonial Property Regime?
Yes, in certain circumstances spouses may apply to change their matrimonial property regime after marriage.
However, the spouses cannot simply decide between themselves that their matrimonial property regime has changed.
A joint application to the High Court is generally required, and the court must be satisfied that the statutory requirements have been met.
The court will consider the circumstances of the proposed change and the interests of other persons who may be affected by it, including creditors.
What Is the Application Process for a Post-Nuptial Contract?
A change to the matrimonial property regime generally involves a formal High Court application.
The process may include:
1. Consultation and assessment
The spouses’ current matrimonial property regime and reasons for wanting to change it are considered.
2. Preparation of the application
The necessary High Court papers are prepared setting out the circumstances and proposed change.
3. Notice to affected parties
The applicable legal requirements concerning creditors and other affected persons must be addressed.
4. High Court application
The application is brought before the appropriate High Court.
5. Court consideration
The court considers whether the statutory requirements have been satisfied and whether the interests of creditors and other affected persons have been adequately protected.
6. Authorisation
If the court grants the application, the parties can proceed with the necessary contractual and registration steps.
7. Registration
The authorised agreement must be properly executed and registered in accordance with the applicable requirements.
Why Is an ANC Important?
An ANC can help couples understand their financial position before entering into marriage.
It can address issues such as:
- Ownership of assets
- Existing debts and liabilities
- The accrual system
- Excluded assets
- Financial independence between spouses
- Business and investment interests
- The financial consequences of divorce or death
The appropriate matrimonial property regime will depend on the circumstances and objectives of the parties.
What Happens If You Get Married Without an ANC?
This is an important issue.
If parties get married without entering into a valid ANC before the marriage, they may generally be married in community of property, unless another matrimonial property arrangement applies under the law.
For this reason, couples should obtain legal advice before getting married, rather than assuming that they can choose or change their matrimonial property regime afterwards without a formal legal process.
Can an ANC Protect My Assets?
An ANC can regulate the parties’ matrimonial property arrangements and may provide for certain assets to be excluded from the accrual system where appropriate.
However, an ANC should not be viewed simply as a way of “protecting everything you own.” Its effect depends on the matrimonial property regime selected, the wording of the agreement and the applicable law.
Proper drafting is therefore extremely important.
Can an ANC Be Changed Before Marriage?
An ANC can be amended or replaced before the marriage in appropriate circumstances, but the parties should obtain legal advice to ensure that the amended or replacement agreement is properly executed and complies with the applicable legal requirements.
ANC for Second Marriages
An ANC can be particularly important where one or both parties have previously been married.
There may be existing assets, children from previous relationships, maintenance obligations, businesses, inheritances or other financial considerations that should be taken into account when deciding on the appropriate matrimonial property regime.
ANC and Business Owners
Business owners should carefully consider the implications of their matrimonial property regime.
A person’s business interests may form part of their estate or may be affected by the matrimonial property regime applicable to their marriage.
Obtaining advice before marriage can help identify potential issues and ensure that the ANC properly reflects the parties’ circumstances.
How Tjale Jubilee Attorneys Can Assist
At Tjale Jubilee Attorneys, we assist clients with matrimonial property arrangements before and after marriage.
Our services include:
- Advice on matrimonial property regimes
- Preparation of Ante-Nuptial Contracts
- Registration of Ante-Nuptial Contracts
- Advice on accrual and exclusions
- Post-Nuptial Contracts
- Applications to change matrimonial property regimes
- High Court applications relating to matrimonial property regimes
- Advice concerning existing matrimonial property arrangements
- Advice for second marriages
- Advice concerning businesses, assets and other financial interests
Our approach is to understand your circumstances first and then advise you on the matrimonial property arrangement that best addresses your legal and financial position.
Planning to Get Married?
Your matrimonial property regime can have significant consequences for your assets, finances and legal rights during your marriage and if the marriage later ends.
Do not leave your ANC until the last minute.
Speak to Tjale Jubilee Attorneys before getting married so that your matrimonial property options can be properly explained and your ANC can be prepared and registered correctly.
Contact Tjale Jubilee Attorneys to discuss your Ante-Nuptial or Post-Nuptial Contract.
