Pre-Nups: Should I have one? What are they? What is their purpose?
A prenuptial agreement (pre-nup) is an agreement parties enter into before marriage. It regulates the type of matrimonial property regime that will be applicable to their marriage, during the duration of the marriage. A pre-nup is often thought of as something that people enter into simply in the event of divorce. This is not so. A pre-nup can become very important if the marriage is ended for other reasons such as death of a spouse. It also regulates debts and as a result the relationship you have with your creditors (eg the bank) as well as your assets (your car or house etc).
If parties are married without a pre-nup, they are automatically married in Community of Property in terms of South African law. This means that neither party has the ability to enter into any contract without the other party’s consent. In other words, even your business contracts, employment contracts and so forth, must carry your spouses consent. This can be a major hamper for any person. However, arguably, the biggest consequence with marriage in community of property is that the debts of one spouse become the joint debts of both spouses. This can be catastrophic for any couple. Eg. if you are in business and the business is liquidated because a client failed to pay you, or something as simple as economic down-turn, your spouse (and you) can be held liable for any debts and sureties. Thus, your spouse is always in the line of fire whenever debts are incurred. However, in Community of Property also means that spouses share all assets. Eg if you won the lottery, your spouse is entitled to half thereof, even if you are currently going through a divorce.
Generally, when a spouse passes away and the parties were married in community of property, BOTH estates are wound up by the executor, debts paid from both parties estates and the balance (if any) is automatically given 50% to the other spouse. Wills and Estates are beyond the scope of this article and for more on Wills and Estates please see our blog at https://www.hamelattorneys.co.za/your-will-and-testament-how-to-ensure-that-you-adequately-provide-for-your-loved-ones-upon-death/
If you and your spouse chose to marry with a pre-nup there are 2 choices: Out of Community of Property including the Accrual System and Out of Community of Property Excluding the Accrual System.
When marrying with the accrual system, the parties values (and certain assets) may be excluded from the marriage. Thus, upon death or divorce, this value is subtracted and the balance divided as per the accrual the spouses have accumulated since marriage (the same in the case of death and the Executor winds up either spouse’s estate). Prior to entering into a marriage with the Accrual System, it is highly advised that you consult with an attorney on the subject so that you are certain of the consequences of the Accrual System, before simply entering into such an Agreement. It is also important that the Agreement itself adequately describes the values and assets. Trying to argue years in the future about an Agreement that was not read properly or not properly drafted can be an utter nightmare and very, very difficult to prove. READ and re-read your Agreement as drafted by your attorney before you simply sign it. Know the consequences of the Agreement thoroughly.
Pre-Nups Out of Community of Property excluding the Accrual system means each party retains their own assets and each party retains and is responsible for their own debts. Neither spouse can be sued for the others debts and neither spouse has an automatic right to assets which they did not assist to pay for or acquire.
Pre-Nups must be entered into prior to marriage and must be registered with the Deeds Office by your attorney. No pre-nups can be entered into after a marriage has been concluded. It is therefore advised that you consult with your attorney regarding the right type of pre-nup (if any) you should enter into, the consequences thereof and the procedure at least a few weeks prior to entering into your marriage.
Contact us today to set up your consultation at https://www.hamelattorneys.co.za/contact/ or on 012 754 3385. Our consultations may be done in person (after lock-down) or at any time, with set appointment online via Skype.