Till Debt Do Us Part: The Case for Antenuptial Agreements

Whether you’re all about the month of love or you’re teaming up with the single ladies to celebrate Galentine's, there’s no escaping Valentine’s Day. But as the world braces for a flood of #SheSaidYes, we’d like to talk about the other “I do” - the agreement to sign an antenuptial agreement. While it may not be the first thing to come to mind when you think of romance and taking your relationship to the next level, maybe it should be. After all, Kim Kardashian splurged $10 million on her marriage to Kris Humphries and, well, we all know how that went. Even Khanyi Mbau’s marriage to business mogul Mandla Mthembu started unraveling under the weight of Mthembu’s debt - leaving him broke in the end. Other less amicable splits cost much more - like a highly publicized trial and trending memes, as a vague, non-specific example.

First Comes Legal Work, Then Comes Marriage

So, why get an antenuptial agreement, you ask? Well, as the old saying puts it, love does not negate knowledge. An antenuptial agreement, also known as a prenup, is not planning for the marriage to crumble. Rather, it provides clarity and security for both partners by clearly defining the ownership of assets and the division of property in the event of a divorce. This helps to prevent disputes and ensure a fair settlement. It can also protect one or both partners from ending up with the other’s debt. In short, a prenup can be a practical and responsible way to protect both parties and their assets. Not to mention it also provides peace of mind, knowing both of you are entering the marriage for the right reasons and on even terms. Here’s what to consider before you tie the knot.

Legal Requirements To Get Married In South Africa

Before you and your partner can be legally married in South Africa, you’ll need to get acquainted with the ins and outs of the law and determine what kind of marriage you’re entering into. There are civil marriages (a marriage between a man and a woman), customary marriages (a marriage that is negotiated, celebrated, or concluded according to any of the systems of indigenous African customary law), or civil unions between two people regardless of gender.

For all of the above marriage types, you need to be 18 years of age, you must not be closely related (sorry, House of the Dragon fans), and a person may not have more than one marriage at a time. The exception is for customary marriages where the husband must apply to the High Court for permission and, even then, he must provide a written contract to state how the property in the marriage will be regulated to protect both the existing and prospective spouse.

Now that you know what kind of marriage you’re getting into, next you need to know how to do it properly:

  • For a legally binding marriage, certain formalities must be adhered to, such as having a marriage officer concluding the marriage and having two witnesses present. A marriage officer is a person who is empowered to legally solemnize and register marriages in South Africa. This person will also ensure your marriage is properly registered at the Department of Home Affairs – another compulsory requirement to acknowledge that you are legally married.

  • Religious Marriages are those marriages taking place according to Jewish, Muslim, or Hindu traditions. These are not automatically recognized as legal marriages in South Africa, although there have been campaigns to change the law. If registered by the DHA, however, it is a legally binding marriage.

Getting Married

Yes, the wedding is special. We don’t need to tell you that. That’s why it is of utmost importance to discuss a few crucial matters before the big day to make sure you are ready for this long-term commitment and that both of you are on the same page in terms of everything from how to raise your future kids to what canapes to serve. Answering the important questions about your day-to-day living ultimately sets you both up for long-term marriage success. This is why the conversation about finances is key. It is never easy to address finances and debt, responsibilities when married, and separate or joined bank accounts, and therefore it is a good idea to get legal advice before you get married. This way, you can get sound advice on how to cover both of you against everything from divorce to pandemics.

The Different Marriage Contracts

Beyond saying I do, you and your partner enter into a legally binding contract when you get married. There are fundamentally two types of contracts for people to sign before marriage.

  • Marriage IN community of property. If you do not sign an antenuptial agreement before the wedding, this will be the default contract. Getting married in community of property means your assets and liabilities are shared equally. There’s one estate between spouses, and property and debts acquired before or during the marriage are shared equally. This also means that, if either partner is unable to repay their debt, both will share the burden. Another aspect to keep in mind when marrying in community of property is that there will be instances where you cannot act independently when making decisions regarding the estate without the consent of your spouse.

  • Marriage OUT of community of property. Being married out of community of property means that both spouses have their own estate and they do not share profits or liabilities for the duration of the marriage. Essentially, your assets and accounts remain separate.

  • Marriage OUT of community of property WITHOUT the accrual system. Under this system, both spouses maintain individual estates, which include any assets and liabilities they had prior to the marriage.

  • Marriage OUT of community of property WITH the accrual system. This is the same contract as above – being married out of community of property - but the accrual system will be applicable. Assets accumulated during the marriage are jointly owned and must be shared if the marriage ends. The accrual system is a formula that is used to calculate how much the larger estate must pay the smaller estate if the marriage comes to an end through death or divorce. If there is no antenuptial contract, this system applies automatically.

  • An antenuptial contract. An antenuptial contract must be signed by both parties, two witnesses, and a notary public. This contract states whether a marriage will be out of community of property with or without the accrual system. This contract must be registered in the Deeds Registries office within a specific timeframe.

An antenuptial agreement is not only for the Kim K’s of the world. It is for anyone who wants to protect both parties entering into a marriage. It lists the property of both spouses, but also their debts, and describes the property rights that will be taken after the marriage.

When Drafting The Antenuptial Agreement

When putting together your antenuptial agreement, be open and honest with your partner about your assets and debts from the get-go. It's also important to sign the agreement before your wedding day and to have the conversation with legal guidance. And finally, make sure you're being fair and reasonable to your partner - after all, you're in this together! Using a lawyer can help ensure that all your legal documents are in order and that you've covered all your bases. We can provide valuable guidance and advice to help protect your interests and make sure you understand all the legal implications of your marriage. Plus, it's always better to be safe than sorry! Just make sure to contact the right people to make it a happily ever after.

This publication is provided for your convenience and does not constitue legal advice. This publication is protected by copyright © Molefe Dlepu