Deciding on whether to conclude an Antenuptial Contract is considered by most couples intending to take the plunge and enter marriage.
This decision may seem focused on the individual’s best interests only but opting to conclude an Antenuptial Contract may prove to be financially beneficial to both spouses. Such contract is drafted and signed in the presence of an attorney who must also be qualified as a Notary Public and is only valid if filed in the Deeds office for registration within three months of it being signed.
If a couple fails to conclude an Antenuptial Contract prior to their marriage being registered, then the marriage will automatically constitute a marriage in community of property. This means that both spouses are co-owners and co-debtors irrespective of which party incurred the debt.
To ensure that your marriage constitutes a marriage out of community of property you and your future spouse must conclude an Antenuptial Contract prior to your wedding day.
When approaching an attorney to conclude your Antenuptial Contract a decision must be made as to whether you want the accrual system to apply to your marriage or not.
Irrespective of the option you choose your marriage will still be out of community of property. This means that you and your spouse will enjoy the following benefits:
1. Freedom to contract without the assistance of your spouse.
2. Financial independence. That is, you are not alible for the debts incurred by your spouse.
3. The freedom to donate assets and gifts to your spouse with the security that they may not be attached to settle your liability to a third party.
SO, HOW DOES IT WORK?
(a) Out of community of property EXCLUDING THE ACCRUAL
This is the simplest regime. Concluding your contract excluding the accrual means that you and your spouse may not claim against each other on divorce for any benefits incurred during the marriage. Should the marriage not prosper for any reasons both may end the marriage with a clean break.
(b) Out of community of property with THE ACCRUAL
If you elect for the accrual to apply to your marriage, then the benefits incurred during marriage are shared.
The principle upon which this regime is founded is equal sharing upon dissolution of marriage.
A calculation will be done by the attorney handling the divorce and a claim will lie against the spouse who has achieved bigger financial growth during the marriage.
This growth is shared 50/50 between the parties.