Antenuptial Contracts – Part 1 of 3 -Implications of Marriage Out of Community of Property

In the twenty first century many couples are entering into an Antenuptial Contract in order to protect their individual assets and restrict their exposure to liabilities brought on in terms of solemnizing a marriage or civil union in community of property. The specific liabilities one is exposed to as well as the requirements to exercise your rights in terms of the type of Antenuptial Contract chosen should be understood before signing.

An agreement made between two parties before they are married or enter a civil union with one another. An ANC determines how you and your partner will be married and the matrimonial regime that the marriage shall be solemnized under.

The ANC must be entered into before marriage. The purpose of the ANC is to change some or all of the automatic financial consequences of marriage.

When deciding to get married it is in the best interest of the couple to discuss and understand the types of ANCs available and what would best suit the couple’s lifestyle, interests and business enterprises.

There are three general types of ANCs namely:

  1. Out of community of property without accrual system;
  2. Out of community of property with accrual system; and
  3. Specialized regime defined in an Antenuptial Contract.

This matrimonial property regime involves an ANC where community of property and profit and loss are excluded, meaning there is no joint estate between the parties.

Each spouse would have their own separate estate, consisting of their own premarital assets and debts, and all the assets and debts he or she acquires during the marriage. They each administer their own separate estates and have full and exclusive control over their own property.

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