Antenuptial agreements are agreements which, inter alia, limit liability between spouses in the unfortunate event of divorce and/or in the event of any litigation arising against any spouse.
Antenuptial contracts are known to exclude the spouses’ assets and liabilities from the matrimonial joint estate (subject to the type of agreement).
Thus when a spouse dies or gets divorce his or her assets and liability remain with him or her and are not divided amongst the parties.
In terms of Matrimonial Property Act there is an exception to the aforementioned ‘rule’.
The accrual system is elective, and applies when spouses enter into a antenuptial agreement prior to the marriage (the general rule), or postnuptially (by Court order).
In the event of inter alia divorce, the accrual system may advance one spouse, or hamper the other, subject to the growth of the ‘joint’ estate.
Parties wishing to be married ‘out and out’ must ensure that this is established in the agreement (it should be noted that antenuptial agreements must be drafted by an admitted Notary).
‘out and out’ refers to out of community of property, without accrual – the most protective version of the antenuptial agreement, in protecting both estates.
Marriage within community of property, and antenuptial marriages including accrual (subject to estate growth) can lead to devastating effects in divorce proceedings on ones estate.
Legal advise should be sought prior to divorce proceedings being instituted, and should also be sought prior to marriage.
Should you require any advice, feel free to contact our office.
Written by Kagiso Makgoka (Candidate Attorney)
As assisted by KR Elliott (Director)