In the Hollywood movies, they refer to 'pre-nups'. A prenuptial contract is just an antenuptial contract by another name. It's an American term for the antenuptial contract we all know about.
We do know about antenuptial contracts, don't we? No, not really. Pay attention.
Most couples do not understand what antenuptial contracts are, nor how important they are. You need to spend more time planning your antenuptial contract, than you spend planning the guest list for your wedding!
I am assuming my readers are South Africans, marrying in South Africa. If not, what I say may not apply to you.
You have the opportunity before you marry, to choose your property system. Your choice is set in place at the moment of marriage.
If you have no antenuptial contract, you will automatically be married in community of property. If you decide to change that, you must get an attorney to prepare an antenuptial contract. It must be planned, prepared and signed by you before a 'Notary Public', well before the wedding takes place. Your lawyer will then ensure that it is registered at the Deeds Registry - yes, it's that important!
You may choose one of the following options for your contract:
'Straight' contract with exclusion of community of property, profits and losses. The 'accrual system' will automatically apply to your marriage.
You can have a 'straight' antenuptial contract with the exclusion of the accrual system. In such a contract, you both agree to have totally separate estates with no sharing.
If you decide to have the 'accrual system' (explained below) apply to your marriage, you need to decide whether to exclude certain assets from the system. This must be done in the contract.
The accrual system is a system of sharing. Briefly, it provides for the sharing of assets acquired during the course of the marriage. Certain things like inheritances and gifts are excluded from the accrual.
The right to claim your accrued share only arises when the marriage ends - through death or divorce.
The decision as to which system to have, and how to construct the contract so that a fair system is created for you and your spouse-to-be, is an important one. If you have already accumulated a reasonable estate, you might consider meeting with your financial adviser and your attorney together to discuss it. You must take full details of all assets and debts to that meeting - and don't forget the value of your pension or provident fund!
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