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Antenuptial Contracts


August is Woman’s month and September is wedding season. The wedding venue, flowers and invitations have been ticked off the list, but what about an Antenuptial Contract? An Antenuptial Contract is not usually considered to be part of the wedding preparations, yet it must be signed before you get married and it may turn out to be the most important document that you ever sign. An Antenuptial Contract is important in order to protect yourself against your spouse’s creditors and to protect your spouse against your creditors.

There are 3 basic matrimonial property regimes :

  • IN COMMUNITY OF PROPERTY

  • OUT OF COMMUNITY OF PROPERTY WITH ACCRUAL

  • OUT OF COMMUNITY OF PROPERTY EXCLUDING ACCRUAL

1. IN COMMUNITY OF PROPERTY :

If a prospective husband and wife do not sign an Antenuptial Contract, then they will automatically be married in community of property. This means that the husband and wife will be co-owners of all assets whether owned by them prior to or during the marriage and of all liabilities whether incurred prior to or during the marriage. If one spouse is sequestrated, the other spouse is also automatically is sequestrated. Everything falls within one joint estate.

2. OUT OF COMMUNITY OF PROPERTY :

If a husband and wife choose to sign an Antenuptial Contract, then they will be married out of community of property. An Antenuptial Contract is a contract between prospective spouses and must be signed before they conclude their marriage. The Antenuptial Contract must be signed in the presence of a Notary Public and two witnesses. The Notary Public will then attest the document and register it at the office of the Registrar of Deeds.

2.1 . OUT OF COMMUNITY OF PROPERTY WITH ACCRUAL :

The parties can choose to sign an Antenuptial Contract and include the operation of the Accrual system.This means that, during the marriage, the parties may own their own assets and will have their own liabilities, but on dissolution of the marriage (a marriage is dissolved either by the death of one spouse or by divorce), the nett value of their accumulated estates is divided equally between them.This result is obtained by the estate with the lesser value having a claim against the estate with the greater value.

In the Antenuptial Contract, the parties will declare a starting value for each estate, which value can also be nil.If the husband and wife both choose nil as a commencement value, then upon dissolution of the marriage, the effect will be that the total nett assets will be divided equally between the parties.The parties may choose to exclude assets which means that upon dissolution of the marriage, those assets will first be excluded from the operation of the accrual before the parties’ nett estate is calculated.

2.2 OUT OF COMMUNITY OF PROPERTY WITHOUT ACCRUAL :

The parties can choose to sign an Antenuptial Contract and exclude the operation of the Accrual system.This means that during the marriage and upon dissolution of the marriage (either by the death of one spouse or by divorce), each party owns his or her own assets and will have his or her own liabilities.The estate of each spouse remains separate and neither estate will have a claim against the other.


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