If you’ve listened to American rap music (especially Kanye West) you would have heard of a pre-nup. If you’re getting married you might be wondering what exactly a pre-nup is and whether you need one.
Well, look no further, because you have landed on a beginners guide to the basics of just that.
First off, in South Africa we don’t have pre-nups (aka pre-nuptial contracts) we have ANC’s or ante-nuptial contracts. It’s more or less the same thing but just has a different name under South African Law.
So, when you get married under South African Law and you join in a legal union in the eyes of the state, a question arises around what is going to happen to the assets belonging to each spouse. This is regulated by a matrimonial property regime and you and your partner get to decide which matrimonial property regime regulates your marriage and the assets and liabilities connected to it.
South African Law allows for 3 matrimonial property regimes. Marriage in Community of Property (INCOP) Marriage Out of Community of Property (OUTCOP) and Marriage according to the accrual system.
Marriage in community of property
This is how your parents or grandparents might be married.
What it entails is that whatever assets and liabilities each spouse brings into the marriage get put together in a big pile of assets and liabilities owned by both spouses equally.
If you are to later get divorced, each party will be liable for 50% of the liabilities at the time of the divorce and entitled to 50% of the assets.
What this means is that if one party is sued, the other party’s personal assets can be seized to pay the debt. So if your husband’s small business goes bust (and he is the sole proprietor) or if he has a gambling problem, you might be saying goodbye to grandma’s inheritance or that sentimental piece of jewellery your bestie gave you for your 21st birthday. It is important to note that if you do not have an ante-nuptial contract drawn up you will automatically be married INCOP
Out of Community of property
This is the opposite end of the spectrum. Instead of all assets and liabilities being joined, everything is kept completely separate. This protects each party’s assets from being seized in the case of potential debt recovery from your spouse but it is not without its own set of problems. For example, if one of the partners stays home to raise the kids and the other acts as the main breadwinner it puts the child-rearer at a massive disadvantage. If the marriage were ever to end for some reason she would be entitled to none of the wealth that had been accumulated by her spouse while she had been spending her time hard at work looking after the kids.
The third and, arguably, the best option is marriage according to the accrual system. This essentially means the parties head into the marriage keeping their own assets separate but, once they are married, anything that is accumulated during the course of the marriage is shared equally. This is calculated by comparing the amount spouse A’s estate increased during the course of the marriage against the amount that spouse B’s estate increased during the course of the marriage. The difference between the two is then halved equally between the parties.
The added benefit is that your assets can not be attached in settling your partner’s debts as you will be seen as separate legal entities while the marriage is in force.
We definitely recommend seeking legal advice on this and if you are going into a marriage with notable assets it might be a good idea to seek advice from two different attorneys (one for each spouse) to ensure that the ante-nuptial contract is fair and neutral for both sides.
An attorney will need to draft and notarise your agreement and this usually costs a few thousand rand depending on the attorney and the complexity of the estates going into the marriage.
Lastly, if you are already married and you are freaking out because you have realised that you did not draw up an ANC and don’t know what to do now, take heart, all is not lost. You can have your matrimonial property regime converted. There are a few more steps and it is slightly more expensive but it is absolutely do-able. Chat to your attorney for details.
Image Credit: CC Rossler
If you found this article helpful, be sure to check out the previous article from this series Making Sure Your Marriage is Legit where we will talk you through what is required for a valid marriage. This is only post 2 of 4 so keep your eyes peeled in the coming weeks for another two helpful articles on the legalities of marriage.