What can be considered when entering into an Antenuptial Contract

For those entering into a marriage out of community of property, an antenuptial contract (ANC) is a must and therefore plays an integral role. And while there are many elements that are typically included, an antenuptial contract can be drafted in a number of ways to suit the unique needs of individuals.

August 29, 2017

The matrimonial property regime selected prior to marriage and the antenuptial contract can protect both spouses and ensure a fair division of assets upon dissolution of the marriage.

The clauses of the ANC

When entering into an antenuptial contract, the parties to the contract must decide whether this will be a contract out of community of property with or without the accrual system. The accrual can then be recorded depending on the wishes of the parties, allowing for certain assets or income sources to be excluded. If such an exclusion is contained within the contract, for example if a property was excluded from the accrual, then the ownership of the property would not be affected upon dissolution of the marriage, meaning that the one spouse who was the owner will remain such.

An antenuptial contract can also be used to stipulate that the parties will share in the accrual in different proportions. For example, it is possible to state that a husband will be entitled to 30% while the wife will be entitled to 70% of the specified asset.

While it is also possible to include provisions relating to inheritance in an antenuptial contract, it is worth noting that these are better dealt with in a will which can be amended as needed while an antenuptial contract can only be updated through an application to the courts.

Restrictions on content of an ANC

An antenuptial contract is considered in the same regard as other contracts and can therefore be drafted to suit the specific situation and the parties. However, there are a few restrictions that are in place to ensure that such a contract does not infringe upon other rights or responsibilities.

As such, a clause may not be included, or may be considered void, should it be seen as unreasonable, against public policy or unlawful as defined below:

  • Unreasonable: Clauses enforcing a change of religion, prohibiting a spouse from working, forcing a spouse to live in a certain area or allowing adultery
  • Against public policy: Clauses enforcing a change of religion, gender or race or prohibiting any association
  • Unlawful: Clauses allowing or forcing a spouse to commit a crime

Ensuring that an antenuptial contract is drawn up in accordance with all relevant legislation and with both parties’ best interests in mind is of utmost importance. As such, it is important to seek the guidance of a reputable notary who will execute the antenuptial contract on behalf of the parties concerned.

For a marriage to be out of community of property, an ANC must be entered into and executed by a Notary Public prior to the parties getting married and consequently be registered in the Deeds office within 3 months after such execution. In the event that this is not done, the marriage will be in community of property.

Written by Wessel de Kock

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