Antenuptial contracts are often portrayed in a negative light in popular culture.
They always seem to be a symbol of a lack of trust between the prospective spouses and there is only a happy ending when one of them tears up the contract as a demonstration of their trust and love for their future spouse.
This is a gross misrepresentation of how important these contracts are.
The important thing to remember about most contracts is that the existence of one does not mean that you do not trust the other party.
Like the rules of a sport, they are there to regulate how you ‘play the game’ with the other party.
It is important for both parties to have a knowledge of the rules so that they can plan their behaviour accordingly, especially since this type of contract will regulate how your finances will work until your marriage ends, either by death or divorce.
If there is no antenuptial contract then the marriage will be what is colloquially referred to as an “in community of property marriage”.
The idea behind this is that the parties will be jointly responsible to manage their now joint estate.
This means that you will both share in the value of the estate when the marriage is dissolved.
For two people in love this sounds like a perfect arrangement.
What is forgotten or not realised along the way is that this also means that you now both exist as a joint entity.
This means that you will need each other’s permission to perform certain transactions, which will obviously be a serious problem if there is a business involved.
You will also not have any protection from each other’s creditors, among other issues.
In fact, it is necessary for a couple to change their outlook completely and to stop thinking of themselves as two individuals.
The other two systems – known as “out of community of property” and “accrual” – have similar positions during the marriage, but different results at the end.
Both of these allow for more independence during the marriage for the spouses.
They can both be used to create an outcome desired by the parties without the difficulties that arise from a joint estate and it is a matter of picking the system that works best and managing it during the marriage period to get the outcome you are looking for.
In fact, the accrual system can be used to get exactly the same end result as being married in community of property, but without the difficulties.
What I am often surprised to see is that people planning to share a life together do not discuss the issue of finances and that it is seen as taboo.
Surely, if you intend trusting the person to be your partner it is important that you can have an open and frank discussion about money?
An antenuptial contract ensures that you both understand how your finances will work moving forward.
If there is going to be a difficult or unpleasant conversation about money it is probably better to have it before you are married rather than during a bitter divorce or after the traumatic death of a spouse.
Du Plessis, De Heus & van Wyk Attorneys has been operational in Benoni since 1981. The partners, Rian van Wyk and Cornel De Heus junior, head a firm of legal personnel that provide expert legal services in litigation, property law, mediation and arbitration, labour law, commercial law, family law, debt collection, wills, insolvent and deceased estates, to name a few.
