Advocate Muhammad Abduroaf – Trust Account Advocate – Best Legal Law Practitioners (Advocate Attorney) Child Custody Maintenance Contact Divorce Relocation Passport Consent

Posted on 11 February 2025 by Telelaw

Advocate Muhammad Abduroaf – Trust Account Advocate – Best Legal Law Practitioners (Advocate Attorney) Child Custody Maintenance Contact Divorce Relocation Passport Consent

The role of antenuptial contracts in South Africa – What do you need to know before getting married?
When people are in love, they often want to spend the rest of their lives together. And one way of doing so is to get married. Usually, after they got married, they will start a family. However, there is one important aspect many people do not consider before getting married. And that is the propriety regime that would apply to their marriage. In other words, what belongs to who during the marriage and after the marriage should they divorce or one spouse passes away.
Marriages in community of property – The Standard Regime
In South Africa, the default matrimonial property regime is that of in community of property and profit and loss. What this means, is that whatever property the couple have during the marriage, they would share. This includes debt. Therefore, should a party receive a huge sum of money during the marriage, that money would belong to both the parties and form part of the joint estate. The same principle would apply should a party get into financial trouble. In such a case both the spouses or the joint estate would be responsible for that debt. If spouses are happy to share in each other’s wealth and liabilities during the marriage, then being married in community of property may be a good option. However, if this matrimonial property regime does not appeal to a couple before they get married, then a different matrimonial property regime should be looked at. Now let us move on to a marriage out of community of property.
Marriages out of community of property – with or without the accrual regime
Marriages out of community of property may take two faces. The first is out of community of property without the inclusion of the accrual regime. This is its purest form. The other would be a marriage out of community of property with the inclusion of the accrual regime. Before we explain the differences between the two, we need to explain to you what it is meant to be married out of community of property and profit and loss.
Marriage out of community of property
Being married out of community of property means that spouses during the marriage own their own assets and are solely responsible for any debt owed by either of them. This can be compared to a marriage in community of property where the opposite applies. Therefore, if the couple is married out of community of property, a spouse would not require the other spouse’s consent to incur a debt. A spouse would not be entitled to claim any monies belonging to the other spouse by virtue of being married. In short, if you are married out of community of property, you are solely responsible for your estate. As would be seen further below, to be married out of community of property you have to enter into an antenuptial contract.
What is the accrual regime?
As mentioned above, a marriage out of community of property could have the accrual regime apply to it or not. The aspect of accrual only comes into play should the parties divorce or one of them pass away. The parties would then share in half the difference between the two estates. This amount is referred to as the accrual. Therefore, by way of example, should one spouse pass away and the estate of the deceased has grown in the sum of R10 000 – 00, then the surviving spouse should receive half of that. The above example would apply if the surviving spouse’s estate has not grown at all. If it has grown, then they would share in half the difference of their respective growths.
Marriage out of community of property with the inclusion of the accrual regime
The accrual regime automatically applies to a marriage out of community of property, unless it is expressly excluded in an antenuptial contract. During the marriage, the same principles as above apply to a marriage out of community of property with the inclusion of the accrual regime.
Marriage out of community of property with the exclusion of the accrual regime
If the couple does not want the accrual regime to apply to their marriage out of community of property, they need to expressly stipulate it in the antenuptial contract. If they do not do so, then their marriage would automatically be out of community of property with the inclusion of the accrual regime.
Parties entering into an antenuptial contract before the marriage
As stated, if a couple wants to get married out of community of property with or without the inclusion of the accrual regime, they need to enter into an antenuptial contract. They would sign a document wherein they stipulate what matrimonial property regime would apply to the marriage. Other matters may be included in an antenuptial contract. For example, assets that should not be included in the calculation of the accrual. The antenuptial contract is signed before a notary public and it is registered at the Deeds Office. In that way, the public would know that you are married out of community of property.
What happens if I did not enter into an antenuptial contract and want to change it later?
Should a couple get married and later decide to change the matrimonial property regime, they may do so with the consent of the High Court. A court application would have to be made to the High Court explaining to the court why they wish to change the matrimonial property regime and also which property regime they now wish to apply to them.
Publication of Application to change the matrimonial property regime
Various other information would be included in the High Court Application which could entail details of various creditors of the spouses and their assets and liabilities and so on. Attached to the court documents would also be a draft postnuptial contract. The Application and the Court date would be published in the Government Gazette and one or two local newspapers for potential creditors to be informed about the pending Court Application.
Informing creditors of the change in the matrimonial property regime
Various creditors would also be notified of the application via registered mail. The application can be expensive because of the work and expenses involved. This cost includes attorney fees advocate fees, publication fees etc. It is therefore important to decide before the marriage whether or not the matrimonial property regime of community of property is the best regime for you before getting married. If it is not the best for you and your intended spouse, we advised that the enter into an antenuptial contract. This will not only save you money in the long run but also avoid a lot of complications in the future. Speak to us should you wish to enter into an antenuptial contract. Our antenuptial contract product may be purchased here. We are certain that you found the above article useful and interesting. Please consider sharing it on the share buttons below. They include Facebook, Twitter, LinkedIn, WhatsApp, Gmail and more. Someone may find it useful as well. Should you require business advice or services, feel free to click on these links: Business SA | Private Legal | Envirolaws

Posted on 11 February 2025 by Telelaw

Frequently Asked Questions and Answers on Prenuptial and Ante-nuptial Contracts
Do you have any specific question on pre-nuptial or ante-nuptial contracts similar to that below? If yes, feel free to post it below. We will try to answer them for you as best we can.
How does a pre-nuptial contract work?
A pre-nuptial or ante-nuptial contract is an agreement an unmarried couple enters into before they get married. I deals with the proprietary aspects of their marriage and other related issues. For example, it would deal with what matrimonial property regime applies to the marriage. For example, whether they will be be married “In Community of Property and Profit and Loss”, or “Our of Community of Property and Loss”with our without the Accrual Regime. In an Ante-nuptial contract mention can also be made of what assets are excluded from the joint estate etc. Below are some questions that people have in relation to to ante-nuptial contracts. The Pre-nuptial agreement is executed, or signed before a Notary Public who then registers the document at the office of the Registrar of Deeds. In this way, the information in the Ante-Nuptial Contract becomes public.
How many years is a prenuptial agreement good for?
For the entire duration of the marriage.
What is a prenuptial agreement in marriage?
It is an agreement a couple enters into before the marriage.
How long should you wait to get married after signing a prenup?
You can get married the next day.
Can you get a prenup after you get married?
No. You should then enter into a postnuptial contract. You need to consent of the high court for that.
Can a prenuptial agreement be overturned?
Yes, if it was fraudulently done.
How much does it cost to get a prenuptial agreement?
Different places have different costs.
Can a will override a prenup?
No it cannot.
What good is a prenup?
One that is well written with no ambiguity.
What are ante-nuptials?
Agreements before the marriage.
Can you do a prenuptial agreement after marriage?
No. You should then enter into a postnuptial contract. You need to consent of the high court for that.
Can a prenuptial agreement be voided?
Yes it can, if there was fraud involved.
How long does it take to draw up a prenuptial agreement?
A good lawyer should take less than an hour for a basic one. A complicated one could take much longer.
Can you get a prenup for future assets?
Yes you can.
Can a prenup protect future inheritance?
Yes it can.
Is my husband entitled to half my inheritance?
It depends what the will of the person says.
How much money can you inherit before you have to pay taxes?
You need to speak to an accountant for that.
Can you get a postnuptial agreement?
Yes, but you need the High Court’s Consent before you can register it.
How do you get a prenuptial agreement?
You should see a lawyer.
Are post NUPS legal in South Africa?
Yes, it is.
Are postnuptial agreements valid in Cape Town?
Yes it is. You need the High Court’s Consent.
What does a postnuptial agreement mean?
An agreement, the same and an antenuptial agreement, but entered into after the marriage.
What is a marital agreement?

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Posted on 11 February 2025 by Telelaw