Moodley & Associates

The importance of an antenuptial contract (ANC) by Serishka Moodley

Often when people hear the words “antenuptial contract” (or prenup as it is more commonly called), they often think that they are going to be cut off from their spouse’s assets. In reality, it is the opposite. While antenuptial contracts can exclude certain assets upon the dissolution of the marriage, it can also gift you with certain assets and protect your own assets in turn from being shared.

ANC’s also protect you in cases where your spouse has taken out a loan or made some poor financial decisions. It can protect you from the creditors of your spouse which is beneficial, especially if you have kids and want to protect their future income and generational wealth.

It is important to remember that the ANC will not dictate what happens in your marriage. In most cases, the contract, once registered, ends up laying in the back of your cupboard, and will only get thought of on death or divorce. People often fright that the contract will rule over their marriage, when in essence, it will not even play a significant role. How you choose to live with your partner/spouse is entirely up to you. The contract will not be hanging over your head, telling you what to do and how to do it. In most instances, it will only come into play when parties choose to get divorced or when one of the spouses passes on.

Apart from the protection against creditors above, an ANC also affords you the protection from the consequences of being married in community of property. A marriage in community of property means that both spouses share equally in the estate. In other words, what’s yours is mine and what’s mine is yours. Likewise, you will also be held liable equally for any debts in the joint estate. It also means that your capacity to contract will be limited in that you will have to obtain your spouse’s permission to enter into any contract, or your spouse will have to co-sign any agreement that you enter into.

Whereas, with a marriage out of community of property, you can specifically exclude any assets that you do not want forming part of the joint estate and you have financial independence in the sense that you will not need your spouse’s permission to enter into contracts for a loan, etc.

It is also a reality that in today’s time, the divorce rate is much higher than it was in the past. And as in love as we may be with our spouse/partner, we also need to be aware of the realities that we face. Having an ANC in place is important to ensure that, in the event of a dispute regarding any asset, it can be settled easily by having regard to the ANC. Divorces are already hard enough without having the added burden of having to fight over objects. An ANC can help ease this burden and assist in the smooth finalisation of the divorce.

At Moodley and Associates, we will assist with the drafting and registration of your ANC. We will also come to you and your partner for a consultation, making it easy and convenient.