Planning Your Matrimonial Future: The Importance of an Antenuptial Contract

An antenuptial contract (ANC) is a legal agreement that sets the matrimonial property system for a couple before they marry. It must be concluded between two individuals who are legally eligible to marry. The contract is only effective once the marriage occurs. The main purpose of an ANC is to exclude community of property and profit and loss, as well as to decide whether to include or exclude the accrual system.

Why have an Antenuptial Contract?

Without an ANC, a couple is automatically married in community of property. This means all assets and liabilities are shared equally. An ANC allows the couple to keep their assets and liabilities separate, offering financial independence. In addition, the couple can choose to apply the accrual system, which allows each party to retain their pre-marriage assets but share in the growth (or accrual) of their estates during the marriage.

What can be included?

The parties have a great deal of freedom to structure the ANC according to their wishes, as long as it doesn’t conflict with public policy, morality, or the law. Certain clauses, such as those designed to encourage divorce or take away the powers of a court, are considered invalid. Essentially, the ANC must respect the rights and obligations that come with marriage.

Formal Requirements of an Antenuptial Contract

For an ANC to be valid, it must meet several formal requirements:

1. Notarial Execution: The contract must be signed before a notary public. The notary must be impartial, without any personal interest in the contract. The notary’s name and the date and place of execution must be mentioned in the contract. The notary’s seal or signature must appear on the last page.
2. Date & Place: The date & place of execution of the antenuptial contract must be clearly stated. This is significant for two key reasons: first, the contract must be signed before the notary prior to the marriage taking place, and second, there is a specific time frame within which the contract must be registered after its execution to ensure it is enforceable against third parties
3. Witnesses: Two competent witnesses must attest to the signatures of the parties.
4. Registration: The ANC must be registered with the Deeds Registry within three months of execution. This ensures that it is enforceable against third parties.

Who Can Enter into an Antenuptial Contract?

An ANC can be concluded by any couple who is legally allowed to marry. This includes partners entering into a civil union. Customary marriages can also involve ANCs, but these must comply with the Recognition of Customary Marriages Act.

Accrual System Explained

The accrual system is an option that couples can choose in their ANC. It ensures that while the property and finances remain separate during the marriage, the increase in value of each spouse’s estate during the marriage is shared equally at its end, whether through divorce or death. Property acquired before the marriage and excluded assets (such as inheritances) remain outside of the accrual calculation.

The accrual system can provide financial balance in cases where one spouse contributes to the marriage in ways that don’t result in direct financial gains, like raising children or managing the household.

Conclusion

An antenuptial contract offers couples a flexible way to plan their financial futures together while protecting individual assets and maintaining control over their property. By understanding the legal formalities and options available, couples can tailor the agreement to suit their specific needs and circumstances.