Who needs an antenuptial contract and how do I make one?

Deciding whether to get an antenuptial is up to each individual couple, as there are varying opinions on the topic. It is not something that most would want to think about when preparing to wed but is important for couples to weigh up their options and then decide whether this contract will benefit their future marriage.

Antenuptial contracts are not valuable couples of wealthier means who wish to protect their personal assets. Couples of more modest means are increasingly using prenups as well, for other purposes, such as the following:

  • Clarifying financial rights during marriage, whether the couple is wealthy or not.
  • Avoiding potential financial conflicts and arguments if there is a divorce.
  • Getting protection from one’s spouse’s debts

Prenups can be beneficial to a spouse with fewer assets, because individuals will often quit a job or relocate prior to a marriage, and a prenup can ensure that they are made financially whole in the event of divorce or death.

To make an antenuptial contract, you need each spouse’s financial information and the ability to decide how to manage each spouse’s future finances. If this is a difficult topic of discussion, couples can consult with a mediator or counsellor to help mediate the conversation, should personal or emotional conflict arise.

Once the agreement is drawn up, it may be necessary to have an attorney review it. Given that your financial situation(s) may change over the years, the contract should be amended over time.

One the prenup has been drawn up, both spouses and the notary public must sign it in duplicate before the marriage. Then, the prenup is forwarded to the Deeds Office for registration, in the area in which the spouses live. Registration must take place within three months of the date it was signed by the notary public. It is important to note that the contract must conform to specific standards and prescriptions in order for the Registrar of Deeds to accept and register it.

If the antenuptial contract is not signed or registered within the allotted time period, the couple can contact the High Court in terms of the Deeds Registries Act 47 of 1937 through a joint application to grant condonation for the late signing and/or registration of the prenup after the conclusion of the marriage.

If the couple decides not to sign a prenup and then change their mind too late, they risk having to sign a contract once they are married and may encounter complications and the expense of trying to execute and register a postnuptial contract.