THE MOST IMPORTANT DECISION BEFORE GETTING MARRIED
So you’ve set a date, chosen the venue and can almost hear the weddings bells ring. But have you given any thought to the effect your marriage will have on your estates? This is such an important legal decision that it should be an informed one.
An antenuptial agreement is a legally binding contract concluded by prospective spouses before the marriage, which is attested by a notary public and registered in a Deeds Registry. This contract governs what will happen with your assets and liabilities in the event of dissolution of your marriage.
- Married couples without an Antenuptial Agreement are married in community of property. The effect of this is that the couple has one communal estate and are liable towards each other’s creditors. This is a situation which could potentially have a detrimental effect on the financial wellbeing of your family especially in the case of death of a spouse or sequestration. Community of property comes into being by operation of law as soon as the marriage is solemnised. It can be described as a universal economic partnership of the spouses in which all their assets and liabilities are merged in a joint estate in which both spouses, irrespective of the value of their contributions hold equal shares’ (JA Robinson ‘Matrimonial Property Regimes and Damages: The Far Reaches of the South African Constitution’ (2007) 10 3 PER 70 at 71)
- A married couple with an Antenuptial Agreement is married out of community of property. Each spouse retains his/her own estate and has complete freedom to deal with his/her respective estate. One spouse can therefore not be held liable for the debts of the other.
- An Antenuptial Agreement can either include or exclude the accrual system.
3.1 An agreement excluding the accrual system means that one spouse will not have a claim against the estate of the other spouse in the event of dissolution of the marriage;
3.2 An agreement including the accrual system has the effect that both parties share in the accrual of the other’s estate from commencement of the marriage until dissolution thereof. Each party will be entitled to exclude the value of the estate which he/she brought into the marriage and they only share the accrual of each party’s estate during the marriage. In this instance the parties will also be allowed to exclude certain assets from the accrual of the respective party’s estate.
CONSULTING WITH A NOTARY PUBLIC
It is important for a couple to consult with a notary to draw up an Antenuptial Agreement to ensure that they are fully aware of the consequences of the contract chosen.
The notary chosen should be an independent third party to ensure that both parties’ needs are addressed in the contract and that the contract is in the best interest of both contracting parties.
The notary should be informed of the parties’ current financial situation, employment and future plans for the notary to advise the parties on the best option applicable to their specific situation.
At Chantel van Heerden Attorneys we will insure that you receive personal attention and professional advice on making these important decisions. Arranging a wedding can be most time consuming and stressful, therefore at Chantel van Heerden Attorneys we attend to your Antenuptial Agreement as a matter of urgency and with the least possible disruption to yourself.
Should you require an Antenuptial Agreements, kindly send us an e-mail to which we will respond within 24 hours. As soon as a decision has been reached regarding your choice of contract we will make sure that your contract is ready for signature within 24 hours.
NOTE: Should you require urgent assistance do not hesitate to contact Chantel van Heerden on 082 850 1189. We can have your Antenuptial Agreement ready for signature within only a few hours.
After marriage creating a will is of the utmost importance. Should you require same, we are able to assist you therewith as well.
Contact us today and make your “Happily Ever After” one with peace of mind.