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.

The process to approval for extending a Sectional Title Unit

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.  

Follow Snymans on Facebook for more legal information, tips and news about property.

13751

Recommended for you

Minors and immovable property
Contractual Matters

What does the Coronavirus lockdown mean for your Offer to Purchase?

19361

We are experiencing unchartered territory with the current lockdown due to the Coronavirus and while it is impossible to predict what the future holds or have immediate answers to what this might mean for each property related scenario, we can offer some advice to those who have signed an Offer to Purchase prior to or during the lockdown in South Africa.

Read More
Your Trusted Partner in Residential and Commercial Property Transfers
Contractual Matters

Rectifying information on a title deed

18532

A title deed is the formal record of who the current owner is of a specific piece of land so naturally, making sure that this information is accurate and up to date is incredibly important.

Read More
Curatorship - what does it mean to be put under curatorship?
Contractual Matters

Documents required for transfer of property

27309

We know that paperwork isn’t everyone’s favourite thing, and while the property transfer process does require quite a few documents, it needn’t be overwhelming for buyers or sellers. That’s why we’ve put together this list of documents required for transfer of property.

Read More
My name has changed - what happens to my property’s title deed?
Contractual Matters

What should I know about bond registrations and cancellations?

26522

For the majority of property buyers, taking out a bond to help finance the purchase of their dream home is an essential step of the process. The good news for Snymans clients is that our experienced team can guide you through the process…

Read More
Minors and immovable property
Contractual Matters

Effective Cause – who earns estate agent commission?

32632

An estate agent can be an invaluable asset in helping you secure a quick and lucrative sale, but in cases where more than one agent might be marketing your property, how do you know who you owe commission to when a sale is concluded?

Read More

Need more Snymans content?

Sign up for our monthly newsletter.

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.

The process to approval for extending a Sectional Title Unit

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.  

Follow Snymans on Facebook for more legal information, tips and news about property.

13751