What is an Antenuptial Contract?

An Antenuptial Contract, also known as a Prenuptial Contract or Prenup, is a contract entered into by two people prior to their marriage, to stipulate the terms and conditions for the exclusion of

community of property between them. The terms and conditions may not be illegal, immoral or contrary to public policy. Each spouse usually retains his or her separate property and have complete freedom to deal with that property as he or she chooses. If one spouse was declared insolvent, the other's property is protected from the insolvent spouse's creditors, subject to Section 21 of the Insolvency Act.

 

The two options regarding an Antenuptial Contract

An Antenuptial Contract excludes community of property. This can only be achieved by entering into an Antenuptial Contract before you get married. There are two options:

  • -marriage out of community of property with application of the accrual system
  • -marriage out of community of property without application of the accrual system

 

If you conclude an Antenuptial Contract prior to your marriage, the accrual system will automatically apply under the Matrimonial Property Act of 1984, unless it is expressly excluded in the contract. Accrual means increase - the accrual system is a form of sharing of the assets that are built up during the marriage. The underlying philosophy in respect of the accrual system is that each party is entitled to take out the asset value that he or she brought into the marriage, and then they share what they have built up together.

 

Under both options (with or without the accrual system), one spouse's property cannot be sold to pay the other's creditors if the other becomes insolvent - in contrast to the case where the parties are married in community of property.

 

Marriage out of community of property WITHOUT the application of the accrual system

If you do no want the accrual system to apply, it must specifically be excluded in the Antenuptial Contract. This achieves a complete separation of assets of spouses - not only those brought into the marriage but also those acquired during the marriage. Each spouse will retain ownership of completely separate estates. There is no sharing and on dissolution of the marriage, neither spouse has any claim against the assets of the other. Similarly, neither spouse is liable for the debts of the other. In other words, there is no sharing of profit or loss and the Court has no discretion whatsoever to adjust the division on the basis of equity or fairness

 

Marriage out of community of property WITH the application of the accrual system

In most cases the accrual system is, perhaps, the fairest marriage system for the majority of couples. Before the introduction of the accrual system in 1984, if prospective spouses chose to be married out of community of property there was no form of sharing between them of what was built up during the marriage.

 

The accrual system was introduced to remedy this. It is applicable to all marriages out of community of property, unless the prospective spouses specifically exclude the accrual system in their contract. In terms of this regime, both spouses have separate estates during the subsistence of the marriage and do not share each other’s profits or losses during the marriage. This system has all the advantages of the protection afforded to marriages concluded out of community of property i.e. that assets of one spouse are secure from the creditors of the other spouse, but it incorporates the ethic of sharing, which is the basis of an in community of property marriage. In other words, while neither spouse will be liable for the other spouse’s debts, the parties will, however, share what they have acquired during the subsistence of the marriage.

 

This sharing only occurs upon dissolution of the marriage. This regime of marriage allows for very imaginative and flexible estate planning. The 'accrual' is the extent to which the respective spouses have become richer by the end of the marriage, in other words, the amount by which the spouses' joint wealth has increased over the period of the marriage. The spouse with the smaller accrual has a claim against the one with the greater accrual for half of the difference between the two amounts.

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