“We are very fond of each other, we want to do everything together and we will never part (divorce).”
The conclusion of an Ante-Nuptial “prenuptial” agreement does not mean you do not love one another unconditionally. Here are some facts to consider:
- Marriage in community of property:
If the marriage takes place without an ante-nuptial contract, the spouses are automatically married in community of property. Thus, after the marriage the spouses’ respective estates become one estate. It also means, of course, when one of the spouses’ estates are sequestrated because of insolvency, the other spouse’s estate is also sequestrated and the assets of both spouses will be seized. In addition, there are certain transactions that may not be entered into without the written consent of the other spouse.
- Marriage out of community of property excluding the accrual system:
There is complete separation of the party’s estates, “Mine is mine and yours is yours.” No debt incurred by one spouse may be recovered by the other spouse or by a creditor unless the party signed surety for the other party’s obligations. If one spouse is declared insolvent, the assets of the solvent spouse does not automatically form part of the insolvent spouse’s estate. A spouse can be held liable for a household expense entered into by another spouse.
- Marriage out of community of property, including the accrual system:
There is complete separation of the party’s estates until the dissolution of the marriage through death or by divorce. “Mine is mine and yours is yours.” No debt incurred by one spouse may be recovered by the other spouse or by a creditor unless a spouse has signed surety for the debt incurred. If one party is declared insolvent, the assets of the solvent spouse does not automatically form part of the insolvent spouses’ estate. A spouse can be liable for a household expense entered into by another spouse. At dissolution of the marriage because of divorce or death, a calculation is made of the accrual of each spouses’ respective estate. The accrual is the amount by which the net estate of each spouse has grown, since the marriage. If there is a difference in accrual between the respective estates of the spouses, the spouse whose estate accrued the least will have a claim for half of the difference between the respective estates. (Various assets may be excluded by way of the Ante-Nuptial agreement, which would be discussed in detail during consultations)
- General:
Note that an Ante-Nuptial agreement must be concluded BEFORE the marriage. Registration of the agreement must take place within 3 months of date of execution. The notary will supply you with a confirmation letter and a copy of the signed agreement which your marriage officer will require.
It is possible to change your matrimonial regime after the conclusion of the marriage, it is an application in the High Court which is costly and time-consuming. Therefore, it is recommended that these issues are discussed before conclusion of the marriage.
It is advisable to update your will when you decide to get married.
Rather save a few “bucks” on the wedding cake and ensure that you have an ante-nuptial contract in place before the date of the wedding.
