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  • 1. What is an antenuptial contract

      • An antenuptial contract sets out the rules and conditions that will govern the division of assets, both during the marriage and upon its termination. It is concluded between two unmarried persons who are legally competent to enter into a marriage.

        Historically, most marriages were concluded in community of property in order to provide a level of protection for women who took care of the household and therefore received no income. In this contemporary era we are aware that it is more natural for both parties to have well established careers and separate economic lives prior to entering into a marriage.
        This article will explore the legal background of antenuptial contracts in its entirety and reflect on the importance of understanding the different marital regimes best suited to the different lifestyles.

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  • 2. Formal requirements for an antenuptial contract

    • 2.1 Notarial form:
      It is important to keep in mind that only an admitted and practising notary may execute an antenuptial contract. The notary executing the contract must not have a personal interest in the contract and must not be closely related to one of the intended spouses1.
      The full names and surname of the notary must be mentioned, and the notary’s seal of office is usually affixed on the last page of the contract.

      2.2 Description of the parties:
      The parties to the contract must be described by their full names and surname, identity number (or date of birth) and marital status (unmarried).
      If a party is a minor, such minor must be assisted by either his/her parent or guardian, the Commissioner of Child Welfare or the person appointed in terms of a court order to assist the minor in entering into the antenuptial contract2.

      2.3 Date:
      The date on which the antenuptial contract is executed must be indicated in the preamble of such contract. This date is of importance for two reasons. Firstly, the antenuptial contract must have been executed prior to the parties entering into their marriage.
      Secondly, there is a prescribed time period within which the antenuptial contract must be registered after its execution in order for the contract to be valid and enforceable against third parties.

      2.4 Place of execution:
      The place of execution must be mentioned either in the commencement (heading) or in the conclusion of the contract3.

      2.5 Signature:
      Both the intended spouses must sign the antenuptial contract in front of a notary, and in the presence of two competent witnesses.
      If the parties sign on two different dates, the latest date will be regarded as the date of the contract.

      2.6 Registration:
      Once the antenuptial contract has been signed it must be forwarded to the deeds office, in the area where the parties reside, to be registered. Registration must take place within three months of the date it was signed by the notary.

      2.7 Witnesses:
      It is customary for two competent witnesses to attest the parties signatures4. The registrar of deeds has a discretion to allow the registration of an antenuptial contract which has not been attested by witnesses, if there is a good reason for such omission5.






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      1Elliot The South African Notary (6th Edition) 59
      2Ex Part Swart and Swart 1953 (3) SA 22 (T)
      3Elliot The South African Notary (6th Edition) 61
      4Meinties v Registrar of Deeds 1915 TBD 228
      5 Registrars Conference Resolution 38 of 1989

  • 3. Civil Unions and Customary Marriages

    • The parties must be able to validly marry each other in order to enter into an antenuptial contract.

      3.1 Civil Union Partners:
      As a result of the Civil Union Act6 partners in a civil union can also conclude and register a valid antenuptial contract. The same practices and procedures applicable to the registration of antenuptial contracts of persons married in terms of the Marriage Act7 apply to the registration of antenuptial contracts of persons joined in civil union.

      3.2 Parties to a Customary Marriage:
      A customary marriage concluded after the commencement of the Recognition of Customary Marriages Act8 is regulated by the Matrimonial Property Act9 in the same manner as applicable to other marriages.
      Whereas, a customary marriage concluded before the commencement of the Act is deemed as in community of property. The spouses can apply to court to change the matrimonial system applicable to their marriage.

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      6 Act 17 of 2006
      7 Act 25 of 1961
      8120 of 1998
      9Act 88 of 1984

  • 4. Marriage out of community of property without accrual

    • The purpose of an antenuptial contract is to exclude the community of property and profit and loss as well as to include or exclude the accrual system from the marriage. However, the exclusion of community of property does not necessarily mean that the community of profit and loss are also excluded. Thus, there has to be an express provision that excludes profit and loss10.

      Example
      1. “There shall be no community of property between the spouses.”

      2. “There shall be no community of profit and loss between the spouses.”

      When an antenuptial contract is in place the marriage is automatically out of community of property.
      This entails that all the assets owned by the parties prior to entering the marriage remains the property of the individual and does not form part of the joint marital estate.

      A marriage out of community of property without accrual is the simplest marital arrangement. All the assets and liabilities acquired during the marriage belongs to the person who acquired it, and each party may make any arrangements regarding the disposal of their estate in a will.


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      10 Elliot The South African Notary (6th Edition) 58

  • 5. Marriage out of community of property with accrual

    • The “accrual” of the estate of a spouse is the growth that the spouse’s estate showed during the marriage.

      In terms of the accrual system11 , during the existence of the marriage the property belonging to each spouse remains completely separate. Only upon the termination of the marriage, all the property acquired by the parties during the marriage are shared between them. The property acquired by the parties prior to their marriage is not shared

      5.1 Calculation of the accrual Value at commencement:

      The value of each spouse’s estate at the commencement of the marriage must either be discussed in the antenuptial contract or in a separate statement12.

      The commencement value of the spouse’s estate is deemed to be nill if the liabilities of that spouse exceeds the assets, or if the commencement value was not declared in the antenuptial contract or in the separate statement.

      Value upon termination:
      When the marriage is terminated each spouse’s estate will be valued again in order to calculate the growth/accrual of each estate. The commencement values are adjusted to make provision for inflation.

      5.2 Assets excluded in the calculation of the accrual:
      • damages received for non-patrimonial loss;
      • assets specifically excluded from the accrual in the antenuptial contract;
      • inheritances, legacies and donations received from third parties;
      • donations between the spouses.

      5.3 The calculation:
      The spouse whose estate shows no accrual or a smaller accrual compared to the estate of the other spouse has a claim against the spouse (or the spouse’s estate if he is deceased) whose estate shows the greater increase, for half the difference between the respective accruals13.

      Example
      Spouse A has a net asset value of R10 000. 00 at the commencement of
      the marriage (commencement value) and a net asset value of
      R100 000.00 upon termination of the marriage (termination value). The
      accrual of spouse A’s estate is R90 000.00.
      Spouse B has a commencement value of R20 000.00 and a termination
      value of R200 000.00. The accrual of spouse B’s estate is R180 000.00.

      The net accrual is calculated by subtracting the smaller accrual from the
      larger accrual. R180 000.00 – R90 000.00 = R90 000.00.
      Spouse A acquires a claim against spouse B for half of the net accrual
      (R45 000.00).


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      11Matrimonial Property Act 88 of 1984 Chapter 1
      12See note 5 above
      13Section 3(1) of the Matrimonial Property Act 88 of 1984

  • 6. The pros and cons of the two matrimonial property systems

    •  

      Marriage out of community of property with accrual

       

      Marriage out of community of property without accrual

       

      Pros

       

      Cons

       

      Pros

       

      Cons

       

      It provides security to the economically weaker spouse.

       

      The economically stronger spouse has to share his/her profits made during the marriage. 

       

      Each spouse keeps his/her own assets, and can dispose of their estate freely.

       

      The economically weaker spouse does not share in the estate of the stronger spouse.

       

      The spouses share in their assets accumulated during the marriage.

       

      The parties have to enter into an antenuptial contract in order for the accrual system to apply.

       

      Spouses are generally not liable for each other’s debts.

       

      An antenuptial contract has to be entered into which costs money.

       

      The spouses do not share their assets acquired prior to the marriage.

       

      The calculation of the accrual upon termination of the marriage can be complex.

       

      The financially stronger spouse does not have to share his/her estate with the weaker spouse.

       

       

       


  • 7. Operative clauses

    • Inclusion or exclusion of the accrual system:

      In order to prevent any uncertainty regarding whether or not the accrual system should apply to the marriage it is
      advisable to insert a clause in the contract which states the wishes of the parties.

      Example

      1. Inclusion of accrual: “The accrual system referred to in Chapter 1 of the Matrimonial Property Act 88 of 1984 shall,
      as from date of conclusion of the intended marriage, apply to the said intended marriage.”

      2. Exclusion of accrual: “The intended marriage will not be subject to the provisions of Chapter 1 of the Matrimonial Property Act 88 of 1984 and the accrual system is hereby
      expressly excluded in terms of the provisions of Section 2 of the said Act.


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  • 8. Clauses regarded as contra bonos mores

    • The following clauses are regarded as contra bonos mores (against good morals) and may not be included in an antenuptial contract:

      • An undertaking by a spouse to adopt/convert to the religion/faith of the other spouse;

      • A clause stating that the marital disputes will be referred to arbitration;14

      • A clause recreating/retaining the husband’s marital power;

      • A clause stating that the spouses will not live together after marriage;

      • A clause permitting the parties to commit adultery;

      • A clause stating that the wife shall stop working and become a housewife on a permanent basis from the birth of their first child;

      • A clause stating that the one spouse cannot bind the other spouse for household necessities;

      • A clause stating that neither spouse shall have the right to ask for an order of forfeiture to share in the accrual of the other’s estate in divorce.


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      14Arbitration Act 42 of 1965 Section 2

  • 9. The imapact of Covid-19 on antenuptial contracts

    • As a result of the Covid-19 pandemic and subsequent national lockdown many couples were forced to cancel or postpone their marriage.

      In the event of the antenuptial contract being signed and registered prior to the marriage, the contract will only become
      effective once the marriage is solemnized.

      An antenuptial contract regulates the matrimonial property system applicable to the marriage and will only become effective after the marriage has been concluded.

      Should the parties find themselves unable or unwilling to marry, for
      whatever reason, the antenuptial contract will not have any force or effect even if it is registered in the deeds office.
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  • 10. Legal assistance by attorneys

    • It is strongly recommended to consult an attorney prior to making life changing financial and social decisions regarding marriage
      and divorce. Attorneys can be expensive but they are crucial to ensure adherence to the law and the correct implementation of the parties rights.

      However, there are options available to parties who cannot afford the legal services of an attorney:

      10. 1 Legal Aid South Africa – aims to provide legal aid to those who cannot afford their own legal representation. This
      includes poor people and vulnerable groups such as women, children and the rural poor.

      10.2 Pro bono (free) legal services offered by attorneys – attorneys in South Africa are obligated to provide pro bono
      legal assistance 24 hours per year to impoverished members of the public. This aims to enhance access to justice for
      parties of limited financial means.

      The Legal Practice Council will refer a party who qualifies for free legal assistance to an attorney who will assist the party
      pro bono. The party will then only be responsible for the actual expenses incurred such as sheriff’s fees. The attorney
      will not charge any fees for the work and legal services provided.


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  • 11. Conclusion

    • When deciding between a straightforward out of community of property, or out of community of property with accrual it is important to take into consideration all the aspects discussed above.
      As time passes and spouses become involved in businesses, investments and other opportunities, the legal side of the relationship plays a significant role.

      The accrual system is more popular in South Africa, especially to young couples who are still establishing a substantial estate.
      However, antenuptial contracts can have consequences for spouses and their families,
      and great care should be taken to properly discuss the required terms and consequences of an antenuptial contract with a notary public.


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