My husband and I married with an antenuptial agreement. What are my rights?

The primary and default system into which couples marry in South Africa is the universal (in) community of property system. Parties married according to this system are co-owners in undivided and indivisible half shares of all the assets and liabilities in their separate estates at the time that they marry as well as all the assets and liabilities they acquire during their marriage. Those parties who prefer that their marriage not be governed by this matrimonial regime, because they wish to exclude certain assets of one of the parties from the estate of the other or they wish to exclude certain pre-nuptial debts from the estate of the other then they should enter into an antenuptial contract. So any deviation from the universal community of property regime must be encapsulated in the antenuptial agreement.

When parties enter into an antenuptial contract in which they provide for the separation of their assets and liabilities, they have to ensure that the agreement is attested by a notary and registered in a deeds registry within 3 months of its execution or as permitted by a court order.

If they fail to comply with these requirements then the agreement will only apply between the parties and not between them and their debtors or creditors. So, if they fail to register the agreement in a deeds registry and one of them enter into a credit agreement, the other party will be equally liable for the debt despite the antenuptial contract. In such a situation, if the party who did not enter into the credit agreement is forced by the creditor to pay the debt, then that party can claim his or her damages from the other party.

Parties can agree on anything in the antenuptial contract as long as it is not contrary to the law or the nature of marriage. Therefore, parties cannot include terms in the antenuptial agreement that they will live separately as that is considered as contrary to the nature of marriage. The terms of most antenuptial agreements, however, completely separate the estates of the parties. That is that all assets and liabilities of each party acquired before the marriage and during the marriage shall remain that of the party who acquired it. Upon divorce, therefore, parties leave the marriage with all the assets and liabilities in their own estates. That means that they do not share in the assets of the other party nor do they carry the burden of the liabilities of the other.

Can I claim a portion of my spouse’s assets at divorce?

Despite the law being emphatic in keeping the estates of parties married as described above separate, it does recognise that situations may occur in which such a separation may be unfair. For such a situation the Divorce Act empowers the court to forfeit either all or part the patrimonial benefits of one party in favour of the other. Therefore, yes, one party to a marriage in terms of an antenuptial contract can apply to court for the forfeiture of some or all of the other party’s assets.

The law requires the court to take into account the duration of the marriage, the circumstances which led to its breakdown and any substantial misconduct on the part of either of the parties. The court will only grant such an order if it is satisfied that if it does not grant the order the other party will be unduly benefited in the circumstances.