As February, the month of love, unfolds, romance is in the air. With Valentine’s Day serving as the backdrop for countless marriage proposals, couples often become swept up in the excitement of wedding planning. However, amid the joy and celebration, one crucial aspect is frequently overlooked—careful planning through an antenuptial contract.
According to senior family legal expert Susan Abro of Susan Abro Attorney, many couples enter marriage with “stars in their eyes” and fail to apply sound financial judgment. “The cost of a wedding is nothing compared to the financial implications of not having a proper antenuptial contract in place,” warns Abro.
Understanding Your Options
An antenuptial contract is a legally binding document signed before marriage that governs the financial relationship between spouses. In South Africa, couples can choose from three marital regimes:
- In community of property: A joint estate is shared equally, meaning both partners are liable for each other’s debts.
- Out of community of property with accrual if properly applied: If parties concluded an Ante-nuptial contract excluding community of property and community of profit and loss, their marriage will automatically be subject to the Accrual System. In principle the parties who`s estate shows a small accrual at the dissolution of the marriage on death or divorce will share in the larger Accrual. The Act provides for the parties to comply with certain formalities in these marriage contracts.
- Out of community of property with the exclusion of the accrual originally in terms of the Act: Each spouse retains ownership of their own estate with no obligation to share wealth upon dissolution of the marriage, subject to the recent constitutional court judgement referred to herein below.
Abro stresses the importance of seeking advice from a family lawyer when drafting an antenuptial contract. “Couples should carefully consider which marital regime suits their unique circumstances and ensure they fully understand the long-term financial implications, and that the ANC can be tailored to suit their individual needs,” she explains.
Key Considerations Following the Constitutional Court Ruling
Recent changes to South African matrimonial property law have added further complexity to marriage planning. In October 2023, the Constitutional Court ruled that Section 7(3)(a) of the Divorce Act was unconstitutional, as it discriminated based on gender. Previously, spouses married out of community of property without accrual had no claim to asset redistribution upon divorce. Now, courts may order an equitable redistribution of assets based on each spouse’s direct and indirect contributions during the marriage.
“This ruling significantly impacts couples who opt for marriage out of community of property without accrual, particularly women who may not have equal financial footing,” says Abro. “It reinforces the necessity of legal consultation with a family law expert before marriage to ensure both parties make informed decisions.”
Practical Advice for Engaged Couples
Before walking down the aisle, engaged couples should take the following steps:
- Consult a family lawyer (it may be necessary for each party to have their own family law attorney): A legal expert will explain the pros and cons of each marital regime and help draft an appropriate antenuptial contract.
- Assess your financial standing: Full disclosure of assets and liabilities ensures the contract reflects both parties’ financial realities.
- Plan ahead: Avoid signing an antenuptial contract under pressure, particularly just days before the wedding.
An antenuptial contract is not about anticipating divorce—it is about ensuring financial clarity, protecting individual assets, proper estate planning and laying a strong foundation for a stable future together. “Marriage is both a legal and emotional partnership. Ensuring financial transparency from the start can prevent heartache down the road,” concludes Abro.
So, if you’re saying ‘yes’ this Valentine’s season, make sure your happily ever after is also legally secured.
www.susanabro.com