By Sheri Breslaw Director at law firm, Fairbridges Wertheim Becker
With September heralding the start of warmer weather, it’s when most new couples share their love by getting married. And so we usually see ‘wedding season’ running from now until about April.
If you’re planning a wedding soon, make sure that, within all the excitement about the venue, the food, the overseas guests coming along to celebrate, you finalise what may just be the most important element: the Antenuptial Contract.
The Cape Jewish Chronicle (CJC) spoke to local family law expert, Attorney Sheri Breslaw, a Director at law firm, Fairbridges Wertheim Becker, about this important document.
Q CJC: Is it a problem if a couple does not put in place an Antenuptial Contract before they have their wedding?
Sheri: The marriage will still be legally valid. However, without any written contract governing the relationship, the marriage is regarded as being in community of property. This implies that all assets and all liabilities become part of the couple’s joint estate. So, let’s say that one of you owns a house, it means that the house immediately becomes both of yours when you get married.
While that may sound fine because you’re both going to live in the house, it’s not very secure. Should one of you get into financial difficulties – for instance, if you open a business and it doesn’t succeed and you owe money to creditors – the house could be sold to raise the funds due to the creditors. And that would affect both of you – in quite a horrible way!
It is possible to sign an Antenuptial Contract after you have married; however, it involves a court application and can be an expensive process.
Q CJC: What should a couple consider as an alternative?
Sheri: Any couple should be proactive about this before they go through the marriage ceremony. Consult an attorney – or each partner could consult their own attorney – and have an Antenuptial Contract drafted. The most important reason for having a contract in place is that your estates remain separate. This means that the assets that each of you own remain yours. In our example of the house above, this could mean that the house would remain safe from creditors if one of the spouses gets into financial difficulties (that is, if the house is registered in the other person’s name).
Q CJC: Explain a bit more, please, about what information an Antenuptial Contract contains.
Sheri: There are two types of contracts. In the one type, the assets of each spouse remain their own completely, no matter whether they were acquired before or after the marriage and irrespective of which spouse contributed towards the purchase of the asset. In the other type, which is a contract that includes the accrual system, each spouse lists the assets they owned at the time of marriage, and these assets remain theirs exclusively. Anything acquired during the period of the marriage is shared equally when the marriage ends through either death or divorce.
Q CJC: What type of contract would you recommend if one or both of the parties is entrepreneurial and likely to own their own business at some point in the future?
Sheri: Irrespective of whether you choose an Antenuptial Contract with or without the accrual system, as long as you have signed an Antenuptial Contract, your assets – the assets that are registered in your name – are safe, as your spouse’s creditors will not be able to lay claim to any assets registered in your name as you are married out of community of property.
Ultimately, the choice about how to plan for your assets remains yours – but it’s certainly worth researching the issue and getting some advice from an attorney before your happy day!
• Published in the September 2023 issue – Click here to start reading.
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