Think with your brain when you sign your antenuptial contract, otherwise you may leave with nothing

2013-01-20 16:08

Most couples are usually so focussed on their wedding ceremony and the preparations that they leave the formalisation of their antenuptial contract for the very last minute. This task is normally left to the husband to arrange and most couples don’t understand its significance and assume it to be a standard form which they sign at one attorney just before the wedding at a nominal cost. At least, you don’t marry with divorce in sight, but in the unlikelihood of a divorce one party may leave with nothing. Your wedding day may be one day, but your marriage is forever. The antenuptial contract could be the most important contract any of us will sign in his/her lifetime.

The difficulties which arise in regard to an antenuptial contract usually start when two parties, hopelessly in love and with different interests wonder into the office of the same attorney and ask him/her to prepare an antenuptial contract on their behalf. Very often the attorney has represented one of the parties before, or has represented the family of one of them, so a serious conflict of interest and evident inequality in the negotiating power of the parties arises. Because an antenuptial contract is registered in the Deeds Office, it can happen that a notary who knows very little, if anything, about family law consults with the parties and gives them absolutely appalling advice in regard to the finer details of the antenuptial contract.

I have dealt with many divorces where a husband and wife were married out of community of property without the accrual. In several of these matters the wife had absolutely no idea that she had no claim against the husband’s estate at divorce. In fact, some women do not even know whether they are married with or without the accrual. Most women have been encouraged to depend on men to take care of these matters for them, the danger exists that some women may simply sign whatever contract the man presents to them without any negotiation at all or, if negotiations do take place, such women may be bullied into agreeing to a contract favourable to the man’s interests. A husband may persuade his wife to marry out of community of property without the accrual by luring her into the wrong belief that such a regime will be safest way to marry if the husband has his own business for example. By excluding the accrual the wife has absolutely no claim against the husband's assets at divorce. At least, with the accrual included in the antenuptial contract, the wife could lay a claim.

It may be reasoned that the likelihood of such contracts is much greater in personal relations than in the business world, where the parties are dealing at "arm's length." When emotions are involved, one party may use the emotional relationship to take unfair advantage of the other. Moreover, women entering a relationship, as they almost inevitably do in this culture, with less real or felt power, and with more emotionality and trust than men, are more likely to be victimized. It happens frequently that prospective spouses are neither informed of the terms of the contract nor are they allowed any options about these terms. In fact, one wonders how many men and women would agree to the marriage contract if they were given the opportunity to read it and to consider the rights and obligations to which they were committing themselves.

Approximately 180 000 people marry each year in South Africa, of those a large majority will end in divorce. According to the December 2012 release of Statistics South Africa a total of 20 980 divorces from civil marriages were processed. Of these, 26,4% of the divorces that took place in 2011 were for marriages that lasted between five and nine years, 21.4% lasted less than five years and almost half 47,8% of the divorces in 2011 were marriages that lasted for less than 10 years.

If you got married after 1 November 1984 out of community of property without the accrual you have no claim against the assets of the other spouse. In certain instances, depending on certain factors you may have a maintenance claim. In this system, when couples marry each spouse keeps a separate estate and whatever assets and liabilities they individually had before the marriage form part of their separate estates. Furthermore, assets and liabilities acquired by each during the marriage also fall within their separate estates. Each spouse has absolute independence of contractual capacity and protects each spouse’s estate against claims by the other spouse’s creditors.

A marriage is out of community of property if it falls within one of the following categories:

- the parties entered into a valid ANC prior to their marriage that excludes community of property;

- the parties changed their marital regime by way of a court application from in community of property to out of community of property;

- the parties are black South Africans who married prior to 2 December 1988 without entering into an ANC; or

- the legal system of the country in which the husband was domiciled at the time of the marriage dictates that the parties will be married out of community of property.

A spouse who contributed to the other spouse’s estate, whether in cash or otherwise, will have a difficult time proving that he/she is entitled to anything from their ex’s estate on divorce as contributions play no role if the parties are married without the accrual. If, for example, the wife stays home to raise the children and does not contribute financially towards the marriage and the other spouse works and accumulates assets, the wife may find herself with nothing and no claim to her husband’s assets.

The time has come for the South Africa law societies to pass a rule forbidding an attorney or notary from representing both parties in respect of the drawing up of an antenuptial contract, unless each party agree in writing that it has been explained to both of them that they are each entitled to separate legal representation in respect of the contract.

Bertus Preller

Family Law Attorney

Abrahams and Gross Inc. Cape Town

Twitter: @bertuspreller

Web: www.divorceattorney.co.za

Email: info(@)divorceattorney.co.za

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