Antenuptial Contract: Should You Get One?

Death or Divorce are the last two things we want to think about when we can hear wedding bells in our heads. We don’t like to talk about the “assets topic” who will get what if our marriage dissolves for some or other reason. However, we have to get this uncomfortable topic out of the way before we exchange rings in order to avoid losing out when things go wrong or end. That’s why is so important to have a conversation about an antenuptial contract, sooner rather than later.  

Here are a few reasons why you should draw up an antenuptial contract:

• The most important thing to remember is, that if you don’t have an antenuptial contract, you and your spouse are automatically married in community of property.

• Once you have an antenuptial contract, you will be married out of community of property either with or without the application of the accrual system it depends on you as a couple.

• This contract can be tailor-made to suit your individual needs.

• An antenuptial contract is not only a contract that protects you and your assets when you get a divorce, but it also protects you and your assets if your spouse dies.

• If either of the parties are declared insolvent, the other spouse is protected from the insolvent spouse.

• Spouses will not be held liable for any debt that the other spouse may incur during the marriage.

• Assets that, for sentimental or financial reasons, the spouses do not want to form part of a joint estate can remain separate.

• Should one of the spouses undertake a business venture, an antenuptial contract removes the risks with regards to the spouses combined assets and protects them against the creditors.

• It’s very important that you and your spouse both attend a consultation with the lawyer drawing up the antenuptial contract in order for you both to understand the nature and implementation thereof.

• The attorney needs to be a registered notary – and this antenuptial contract also needs to be properly registered.

• If, however after your marriage you have realized that you want an antenuptial contract, it will be possible to convert the marriage regime, but it’s a very expensive process. Rather take the time before your marriage to deal with these technical issues.

• This contract can, among others, ensure that spouses are not held liable for each other’s debts and do not share in each other’s profits arising from the marriage. It further enables parties to transact without each other’s consent where consent would ordinarily be required if they were married in community of property.

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.