Signing an antenuptial contract does not mean you are preparing for divorce

Many believe that signing an antenuptial contract means that you are preparing for divorce before you have even spent one night as a married couple. It is a common misconception among people that signing an antenuptial contract necessarily means admitting a level of distrust towards your partner. While it is true that an antenuptial contract can protect you in the event of divorce, signing one does not have to mean that you are preparing for divorce.

An antenuptial contract actually benefits and protects your marriage. Here are some reasons why.

Financial and legal independence

If you sign an antenuptial contract, you retain legal and financial independence from your spouse. You and your spouse are competent to deal with your own property. Practically speaking, this allows you and your spouse to carry out major decisions regarding the marriage in a much more efficient way. For a couple married in community of property, there are many circumstances where consent of the other spouse must be given before the first spouse is allowed to act. Sometimes the consent can be informal, other times there must be written consent and there are times where written consent with two witnesses is required. This can be quite a cumbersome process. If you are married out of community of property, you can carry out these decisions in a more efficient manner because legally only one person (being a independent legal entity) is needed to act or sign.

Insolvency

An antenuptial contract provides protection in the case of insolvency. It protects your spouse from your debt and vice versa. When you sign an antenuptial contract, your estate and your spouse’s estate remain separate. This means that you can own stuff separately from your spouse. It also means that your  debts and your spouse’s debts respectively are your own. The benefit to this is that if you accrue debt of some kind, your debt cannot come after your spouse. Your spouse is protected from the creditors. Not all the assets in the marriage will be touched by the debt.

Accrual system

In South African law, all marriages out of community of property are considered to include the accrual system unless expressly excluded. The accrual system comes into effect at the dissolution of the marriage (through death of divorce). It takes into account how much each spouse has accrued during the course of the marriage and seeks to redistribute the collectively accrued wealth in a fair manner.

The accrual system recognises that marriage is a partnership. It recognises that contributions to the marriage other than financial should also be honoured. You and your spouse are entitled to deal with your property as you desire, but both spouses gain a fair share in the estate at the dissolution of the marriage. This avoids a situation where one spouse leaves with everything and the other spouse is left close to destitute.

Death

When you or your spouse dies, the surviving spouse is protected if you have signed an antenuptial contract. Your assets will be separate from your spouse’s assets. When one spouse dies, his or her estate will be frozen as it gets wound up. The surviving spouse will still have a functioning estate and will be able to support him or herself through this during the time the other estate is being wound up. If you are married in community of property and your spouse dies, the entire estate (including your half share) gets frozen to be wound up and, for a lengthy period, you are left with no estate to support you.

Need help with an antenuptial contract?

An antenuptial contract benefits your marriage in a big way. If you require assistance in drafting an antenuptial contract, please do not hesitate to contact us at info@gunstons.com.

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