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 If you have made the big decision to get married, you are quickly realizing that there are many decisions that need to be made. Other than the dress, wedding and reception, there is also a key legal decision that you should make with your fiancé – whether or not you need a antenuptial agreement.
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An Antenuptial Contract, also known as a Prenuptial Contract or Prenup, is a contract entered into by two people prior to their marriage, to stipulate the terms and conditions for the exclusion of community of property between them. The terms and conditions may not be illegal, immoral or contrary to public policy. |
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In most cases the accrual system is, perhaps, the fairest marriage system for the majority of couples. Before the introduction of the accrual system in 1984, if prospective spouses chose to be married out of community of property there was no form of sharing between them of what was built up during the marriage. The accrual system was introduced to remedy this. It is applicable to all marriages out of community of property, unless the prospective spouses specifically exclude the accrual system in their contract.
In terms of this regime, both spouses have separate estates during the subsistence of the marriage and do not share each other’s profits or losses during the marriage. This system has all the advantages of the protection afforded to marriages concluded out of community of property i.e. that assets of one spouse are secure from the creditors of the other spouse, but it incorporates the ethic of sharing, which is the basis of an in community of property marriage. In other words, while neither spouse will be liable for the other spouse’s debts, the parties will, however, share what they have acquired during the subsistence of the marriage. This sharing only occurs upon dissolution of the marriage. This regime of marriage allows for very imaginative and flexible estate planning. |
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When the parties do not enter into an antenuptial contract prior to marriage they will be automatically married in community of property. The property, assets and liabilities belonging to both parties at the time of marriage or acquired any time thereafter become part of the joint estate. The parties own the assets and liabilities in equal undivided shares and they are joint administrators of the joint estate. The parties in certain circumstances may however own separate property which will not form part of the joint estate for example donations and inheritances where the testator or donator expressly excluded from the joint estate. This exclusion of ownership is only valid between the parties and not against creditors of the joint estate and is thus attachable. |
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If you do no want the accrual system to apply, it must specifically be excluded in the Antenuptial Contract. This achieves a complete separation of assets of spouses - not only those brought into the marriage but also those acquired during the marriage. Each spouse will retain ownership of completely separate estates. There is no sharing and on dissolution of the marriage, neither spouse has any claim against the assets of the other. Similarly, neither spouse is liable for the debts of the other. In other words, there is no sharing of profit or loss and the Court has no discretion whatsoever to adjust the division on the basis of equity or fairness. It is recomended in in circumstances where both parties have income and property. Mostly couples marrying for the second time where there is children from previous marriages involved. |
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