We don’t like thinking about death or divorce when we are in the grip of a heated romance and can hear wedding bells in our heads. We don’t like talking about which assets we will claim as ours if the relationship sours. However, it is far better to get these uncomfortable details sorted out before you exchange rings in order to avoid losing out when things go wrong or end – and they ultimately will, whether you like it or not. Drawing up an antenuptial contract isn’t about being greedy or getting more than your fair share of someone else’s wealth, though of course there are some gold diggers out there. It is about protecting your finances when you are vulnerable. – JC
So, you’ve chosen rings, a date and a venue for your wedding, and it’s all moonlight and roses. But what about your antenuptial contract (ANC): have you given that any thought? We asked Claire Penfold, head of the mediation department at the Family Life Centre in Parkwood, Johannesburg, to give us some pointers on ANCs.
1.If you don’t have an ANC, you are automatically married in community of property. Many people feel that drawing up an ANC is preparing for divorce, but it’s really not. Because an ANC will also protects you and your assets if your spouse dies.
2. If you have an ANC, you will be married out of community of property with accrual, unless the accrual system is specifically excluded. This means that each spouse retains his or her separate property and has complete freedom to deal with that property as he or she chooses.
3. The accrual system is a form of sharing of the assets that are built up during the marriage. The underlying philosophy is that each party is entitled to take out the asset value that he or she brought into the marriage, and then they share what they have built up together.
4. Having an ANC in place ensures that you and your spouse are seen as separate legal entities, which means you are protected from your spouse’s creditors. So, for example, if you are married in community of property, and one of you has a gambling problem and runs up huge debts, spouses would be jointly responsible for paying back those debts. An ANC will protect both of you against that.
5. The accrual system only applies if the marriage is dissolved – either by divorce or death. You cannot claim your share of the joint estate while you’re still married.
6. It’s important that both of you consult the lawyer who’s drawing up the ANC – because both parties need to be fully aware of the consequences of the ANC. It’s also important to see someone who’s neutral, and who can mediate what goes into your ANC, because emotions can cloud your judgment, and it can be a stressful negotiation if one party has a lot of assets and the other doesn’t, for example.
7.The lawyer must be a registered notary – the ANC has to be properly registered.
8. You can’t contract out of either your ANC or community of property. So, if your spouse died and left everything to the SPCA, or to the lover they had on the side, that wouldn’t matter. You would still be entitled to your share of their estate – it is a legal, binding contract.
9. And finally, if you didn’t draw up an ANC, and realise you probably should have, you can convert from community of property to an ANC after marriage. It’s more expensive, and you do have to advertise so your creditors can object, but it’s possible, and a good lawyer should be able to guide you through the process.
Posted on November 9, 2014 in Thought Leaders