A marriage is a unique parcel made up of, on the one hand, considerations and undertakings private and intimate to two persons and, on the other, certain legislated consequences that automatically apply to the persons’ patrimonial relationship. Married persons are often, at least initially, unaware of the effect of these somewhat contradictory elements that exist within their marriage relationship. But as time passes and spouses becoming involved in businesses, investments and other opportunities, the legal side of the relationship plays a very significant role, undoubtedly also should the spouses divorce.
For the reasons mentioned above, and as a start to honouring your union and showing consideration for your future life together, spouses-to-be are well advised to invest in a custom-drafted antenuptial contract to avoid unnecessary uncertainty or conflict in future. An antenuptial contract gives parties the opportunity to (amongst other things):
- protect and secure a spouse’s individual assets (including those intended for heirs) from the other spouse’s creditors;
- protect a spouse from becoming jointly liable for the debt of the other spouse;
- determine that an inheritance received by a spouse during the marriage will remain in that spouse’s individual estate; and
- outline rights and obligations in the event of divorce and death many couples are uncomfortable to contemplate the possibility that their intended marriage may be subject to financial strain or come to an end; it is however in the best interest of both parties to do so, in order to ensure a degree of certainty in making financial decisions and planning their future with confidence.
If you choose a marriage out of community with accrual, or out of community without accrual, it will be necessary to conclude an antenuptial agreement. Note in this regard:
- The antenuptial contract has to be prepared by and signed in front of a specially qualified person designated as a notary public before the date of marriage.
- It must then be registered at a South African deeds registry within three months, and the notary will in due course prove to you that he has registered the contract by giving you the original with the deeds registry details endorsed on it.
- This is absolutely crucial as the contract is a public document, and any member of the public can go and view a copy of your contract at the deeds registry. That is what proves that you have the right to conduct your financial affairs independently.
STBB Claremont
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