Planning your ‘happily-ever-after’ is no easy feat. Between finding a venue, coming up with a world war-thwarting seating plan and orchestrating photography and flowers, couples find themselves managing a lot during the engagement period. Understandably then, the conclusion of the marriage agreement between two persons hardly receives the due consideration and attention it requires. For most brides and grooms, discussions and negotiations regarding the finances, assets and adverse future scenarios is a serious mood killer. In the sort of environment we encounter today, an antenuptial agreement is no longer a nice-to-have. It’s an absolute necessity.
Generally referred to as a ‘prenup’, the marriage arrangement is correctly called an antenuptial agreement (or ‘ANC’) in South African Law. Let’s face it, ‘antenuptials’ generally have a bad rap in society. The most common argument put forward against having an ANC is that it means that the parties must consider the possibility of the marriage breaking down. And that creates suspicion and doubt. We find that when the couple ignores the ambient noise and negativity from friends and family and approach the negotiations with an objective and business-minded attitude, they quickly realise that the agreement also addresses economic risk and other factors.
An antenuptial agreement can be especially important if either of the parties are involved in high risk business endeavours, have inherited or accrued large amounts of monies, have children from a previous relationship, or property registered in their names, and they wish to avoid the consequences of being married ‘in community of property’.
Contrary to popular belief, an antenuptial agreement is not just for the rich and famous. It can, if properly formulated, serve to protect spouses from their partners’ existing debts, future debts or insolvency; stipulate how property should be distributed; preserve family inheritances; or ensure that a spouse does not structure his or her finances by means of a trust to the detriment of the other party. An antenuptial agreement is also not only relevant upon divorce but can also benefit a surviving spouse in the unfortunate event of his or her partner passing away.
It is important for individuals to be aware of the different marital regimes and to understand the implications thereof, well before getting married. Parties who don’t sign an ante-nuptial agreement are automatically married ‘in community of property’. This means that there is only one pot of gold, or perhaps one pot of coal. This marital regime does not offer a husband or wife any protection against monetary claims by third parties. And in the unfortunate event of one spouse being sequestrated, the couple will lose everything. Parties who intend to explore risky business ventures should be wary of getting married in community of property.
In certain circumstances, it is possible to change your marital regime by means of an application to court.
A marriage ‘out of community of property’ can either include or exclude the accrual system. The accrual system entitles a spouse to share in the accrual of the spouse whose estate has accrued more than his or her estate as at the date of divorce or death. The result, on a proper application of an accrual claim under normal circumstances (but not always), is that the parties share equally in the combined value of the assets and liabilities that they each acquired after the date of their marriage up to the date of divorce or death.
Regardless of whether the accrual system is included or excluded the parties are protected against third parties and retain financial independence. Couples can get quite creative with what they wish to be included as part of the terms of their union. A balance however, always needs to be achieved to ensure that the marriage does not kick off with bitterness. Fairness is a key ingredient in any agreement. Tailor-made provisions should be capable of being given effect from a practical perspective and it should be ensured that they don’t go against the moral convictions of society, in which event such a provision will not be enforceable.
An antenuptial agreement needn’t be a mood killer, but rather viewed as an asset that protects you and your loved ones in future. Seek guidance and assistance from an experienced family law attorney at least three months before the wedding bells start ringing.
by Shani van Niekerk | Associate