MARRIAGE TO-DO LIST #1. ANTENUPTIAL CONTRACT.

Marriage is a major step in life, and nobody enters a marriage with divorce in mind. Even though you may be convinced that you belong to the 51% of marriages which will not end up in divorce court, you still need to make a responsible, informed decision to protect yourself and your spouse.

An Antenuptial agreement in Today’s day and age is a MUST HAVE and even more so if you intend on marrying an entrepreneur.

This special contract protects parties and their family against creditors, even if they do not end up divorced. Therefore, it should be item number 1 on your “Wedding To-do list”.

WHAT IS AN ANTENUPTIAL AGREEMENT?

It is an agreement entered into between two parties PRIOR to their marriage and is often referred to as a “prenuptial” or “prenup”.

WHAT FORMS OF PRENUPS EXIST?

Upon entering into the agreement, the parties agree to exclude the system of Community of Property from them

marriage.

There are two forms of Prenups:

1. Those including the Accrual system.

 and

2. Those excluding Accrual system.

WHAT HAPPENS IF YOU DO NOT ENTER INTO A PRENUP?

If you do not enter a valid, notarized Prenup PRIOR to your date of marriage, you are automatically married in Community of Property. Which means ONE cake which needs to be split in half with assets and liabilities forming part of the slices and creditors can claim the whole cake. 

CAN SPECIAL TERMS BE INCLUDED?

The Prenup may include a variety of terms and conditions, usually relating to the division of assets in the event of death or divorce.

During the marriage, each spouse will retain his or her separate property and would have complete freedom to deal with that property as he or she wishes.

This would not be the case if the parties were married without a Prenup, and as such, be married in Community of Property.

There is a substantial amount of protection in our law for spouses married according to an Antenuptial

contract which protection is not afforded to people married in Community of Property.

BENEFITS OF A PRENUP?

• Assets that, for sentimental or financial reasons, the spouses do not want to form part of a joint estate can remain separate.

• Spouses will not need to obtain each other’s consent when dealing with their own property.

• Antenuptial contracts remove the risk regarding all the spouses combined assets, should one of the spouses undertake a business venture, allowing for the protection of assets from creditors.

• Lastly, each spouse can retain his or her individual financial identity.

WHICH IS THE BEST MARITAL REGIME?

Well, if you ask me, a Divorce specialist and divorce mediator, I will say: Out of community of property with the Inclusion of the Accrual system.

Why?

Because if you are planning to build together, you should have some sort of security that you will get to share in the bricks laid by you. The inclusion of the accrual amounts to “in community of property” with all the benefits as listed above.

WHERE TO GET A PRENUP?

Do some research and shop around for the best price. Setup a consultation with an Attorney or Notary (an attorney with the additional qualification of a Notary Public) P R I O R to the marriage being solemnized.

Once your instructions as to the contents of the Prenup have been taken, the Notary will draft the Prenup in accordance with those instructions and will then arrange for you and your spouse to attend at their offices to sign the Prenup in their presence OR another option is to sign a Special Power of Attorney which authorizes your Attorney, to sign on your behalf, in front of a Notary Public.

The original Pre-nup is then sent off to the Deeds Office and is registered by the Deeds Registry. The Pre-nup must be registered in the Deeds Office within 3 months from date of the marriage.

Why a Marriage Contract? Because Marriage is not a Pinky Promise!