The Ante Nuptial Contract

by | May 9, 2019

For 6 years we have worked with MBI Attorneys in Randburg to refer anyone needing advice and help with the Ante Nuptial Contract (ANC). They are a small firm of two attorneys who deliver excellent service and they are well worth contacting if you require assistance with a contract. Email Beverley Brown on bev@mbiattorneys.co.za or +27117470308. We asked them to put together or short article on what an ANC is and why it is very necessary. Here it is: 

The Ante Nuptial Contract

It’s not what you think it is.

It’s not about a planning for “the worst” or throwing a lifeboat “just in case”.

In fact it’s the exact opposite – it’s about placing a hedge of protection around the family unit you create when you say “I do”. It’s about making decisions TOGETHER about the life you’re building together.

For those reasons, amongst many more, the Ante Nuptial Contract (ANC) is arguably one of the most critical documents that a person will sign in their lifetime. The consequences thereof are significant with far reaching implications for the estate of both parties. The ANC determines the matrimonial property regime which will govern your marriage and so needs to be finalised before the marriage day. With so many decisions to be made prior to the wedding day the ANC is often not given an appropriate level of consideration with potentially severe consequences for your future.

The mere fact that such a contract needs to be signed in the presence of a Notary as well as two competent witnesses and formally registered at the local Deed’s Office is indicative of the importance of this formality.

There are 3 matrimonial property regimes in South Africa, applicable to marriages under the Marriages Act 1961 and the Civil Union Act 2006. Whilst the In Community of Property regime (I.e. “what’s mine is yours and yours is mine”)
holds the rosy feeling of sharing together, it leaves you and your family vulnerable to colossal risks associated with business dealings, debt, sequestrations, attachment of assets  by the sheriff of the court to satisfy a debt of a spouse, and more perturbingly, the far reaching consequences at the passing of a spouse (because dealing with the grief isn’t enough right?!).

On the other hand, the Out of Community of Property regimes put into place hedges of protection against these sorts of risks. Out of community of property allows a family to proceed and build a life with complete autonomy (I.e. separate estates, what’s yours is yours & what’s mine is mine”). The option of application of the accrual system acts as an “add-in” for that said rosy feeling of sharing in everything you build together and even makes provision for excluded items.

Whether it’s a first or fourth marriage, you’re business people or you’re homemakers, there is a matrimonial property system that will work for the lifestyle you intend to build together, one that creates a solid foundation on which to build your future and which protects you both, together. Your marriage and lifestyle is unique to you as a couple, for that reason a contract of this nature should never be a standardised template presented to you for signing at nominal cost and devoid of reflection to your particular lifestyle and intentions for the future. It should rather be a tailored reflection of the lifestyle you choose as newlyweds.

The varying costs of ANC’s should be perceived as an investment in the protection of your rights and should be viewed in light of the security it brings to your future as individuals as well as the future you will share as a couple. After all, how much is peace of mind worth to you?

Remember: Planning is everything in life: “Someone’s sitting in the shade today because someone planted a tree a long time ago”.

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