Having an antenuptial contract (ANC) drawn up is often said to be “unromantic” – but divorce statistics indicate that it’s wise to plan for any eventuality.
Two legal experts explain why you should have this document in place, and how it safeguards both partners in a marriage or civil union.
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What is an ANC?
An ANC is a legally binding agreement drawn up between two people before they marry or enter into a civil union.
What role does your marital regime play?
South African law recognises three different marital regimes. These are marriage in community of property, marriage out of community of property with accrual, and marriage out of community of property without accrual.
The default marital regime in South Africa is marriage in community of property.
“The only parties who don’t need an ANC are those who remain unmarried or who specifically wish to be married in community of property, which results in a joint estate,” says Diane Snyman, an attorney, notary, and conveyancer at STBB.
If a married couple doesn’t have an ANC, they’re jointly liable to creditors for any debt arising from the joint estate, and any debt incurred by their spouse before the marriage.
Candice Eve-Friis, a partner in the litigation department of Shepstone & Wylie Attorneys, warns that this situation is “precarious” for spouses conducting their own businesses or incurring debts.
Is your ANC valid?
For an ANC to be valid, it must be entered into before marriage, and the contract must be validly concluded, explains Snyman.
“This is a twofold process," she says. "First, the ANC must be executed before a notary public, and it must then be registered at the Deeds Office within three months of the date of signature.”
Couples who do not wish to be married in community of property are advised to have a notarial deed executed before they marry.
“This allows them to be married out of community of property, with or without the accrual system applying to the marriage,” notes Eve-Friis.
“People give considerable thought to their wills, but often don’t understand that the ownership of the assets they dispose of in their will may be questioned if an ANC is not drawn up correctly,” she cautions.
Why do you need an ANC?
The primary aim of an ANC is to regulate how each spouse's assets and liabilities are dealt with or distributed in the event of divorce or death.
By opting to marry out of community of property, with or without accrual, you can ensure financial independence and protect your estate against claims by third-party creditors, explains Eve-Friis.
A problem arises, however, if a couple chooses to marry out of community of property with the exclusion of the accrual system, and one spouse decides to stay at home, raise children, and not contribute financially during the marriage.
“In this scenario, you may find yourself without assets and may struggle to prove you’re entitled to receive anything from your spouse’s estate on death or divorce,” warns Eve-Friis.
Who executes an ANC, and what does it cost?
Snyman says that in South Africa, an ANC must be attested by an admitted, practising notary public; a specialist attorney empowered to draft certain documents and attest to specific acts of law.
“The cost varies from firm to firm, but the 2023 conveyancing tariff guideline recommended a fee of R2,870, excluding the consultation fee. However, the fee can be considerably higher, so speak to your attorney before proceeding,” she advises.
Top tips to bear in mind
Don’t enter an ANC months before your wedding in case of a delay or – in a worst-case scenario – the cancellation of your wedding, Snyman cautions.
“Once registered at the Deeds Office, the ANC will remain registered in your name, and you may have to ‘explain it away’ forever,” she cautions.
“It’s best to conclude the contract in the month or weeks before the marriage, and then confirm to your attorney or notary that the marriage has taken place, at which stage lodgement and registration can occur.”
Another tip is to sign the contract yourself, instead of giving power of attorney to a third party.
“If the ANC isn’t physically signed before your marriage, or if it’s accidentally not registered, you will be considered married in community of property, with potentially dire financial consequences,” Snyman warns.
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