In South Africa, an antenuptial contract (ANC), also commonly known as a prenuptial contract or prenup, is a legal agreement entered into by two individuals who are planning to get married. The contract is designed to govern the division of assets and liabilities in the event of divorce or death of one of the spouses.
It allows the couple to establish their proprietary rights, indicating whether their assets will be merged into a joint estate or kept separate during the marriage.
There are three types of antenuptial contracts recognized in South Africa:
Antenuptial contract with accrual: This is the most common type of ANC. In this contract, each spouse retains ownership of their individual assets acquired before and during the marriage. However, they agree that if the marriage is dissolved, either through divorce or death, the spouse with the smaller accrual (the difference between the starting value and final value of the respective estates) will have a claim against the other spouse for half of the difference between the two accruals.
Antenuptial contract without accrual: In this type of contract, each spouse keeps their assets completely separate throughout the marriage. There is no sharing of accruals at the end of the marriage, and each party maintains full ownership and control of their individual assets.
Antenuptial contract with the exclusion of specific assets: This type of ANC is similar to the antenuptial contract with accrual, but it allows the couple to exclude certain assets from the accrual calculations. These assets are typically specified in the contract and will not be subject to sharing in the event of a divorce or death.
It is essential for couples to consult with a qualified attorney before getting married to understand the implications of each type of antenuptial contract and to choose the one that best suits their needs and preferences. The antenuptial contract must be signed in the presence of a notary public before the marriage takes place for it to be legally binding.
If no antenuptial contract is signed, the marriage will be considered to be in community of property by default, which means all assets and liabilities will be shared equally between the spouses during the marriage and in the event of its dissolution.