More often than not, parties to a marriage do not give consideration to the marital regime that will be applicable to their marriage. Yet the consequences that may arise during the subsistence of the marriage as well as upon dissolution of the marriage is too significant to ignore. Parties are thus faced with consequences that they were not prepared for prior to the marriage. Registering an antenuptial contract is a fairly simple process and parties should not shy away from it for the fear of what it may hold. In this short article, we will unpack the consequences of failure to conclude an antenuptial contract as well as the benefits thereof.
I don't have an antenuptial contract! What does this mean?
The failure to conclude an antenuptial contract results in a marriage in community of property, and of profit and loss. Both parties' assets and liabilities are thus merged into a joint estate, with both parties having equal shares to, irrespective of the value of their actual contribution to the joint estate. This also means that the parties share in the liabilities, so one party's increase in liabilities are possible insolvency will have an adverse effect on that party's spouse. Parties are also required to obtain consent from their spouse for several transactions, including the sale of immovable property. Failure to obtain the required consent may render the transaction invalid. Upon dissolution of the marriage, both parties are entitled to this 50% of the joint estate. However, certain assets may be excluded by virtue of a will or in terms of section 7(7) of the Divorce Act 70 of 1979.
How do I go about getting an antenuptial contract?
An antenuptial contract must be concluded to be married in any regime other than a marriage in community of property. The antenuptial contract will detail the terms and conditions of your marriage and can ensure that the parties do not share in each other's liabilities or profits that arise from the subsistence of the marriage. Parties are also allowed to transact with their assets without requiring consent from their spouse. In order to conclude the antenuptial contract with your attorney, a decision must be made on whether to include accrual to the marital regime. A full breakdown and complete transparency with your partner, regarding assets and liabilities, must be disclosed and considered when opting for the inclusion of accrual. The contract can be concluded days before the wedding and will be lodged at the Deeds Office within three months of the signature of the contract. By opting for the antenuptial contract, upon dissolution of the marriage, your assets are thus divided according to the contract.
Wedding plan in itself is a stressful process, but it is imperative to be aware of all the different consequences that may arise from that marriage. Should you be unclear on what to do, or what marital regime is best for your partnership, it is important to do the necessary research and obtain legal advice herein. Many couples are unaware of the consequences of a marriage in community and only come to realise it once it is too late. Concluding an antenuptial contract is a fairly straightforward process and is one of the important aspects to include in your wedding planning.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.