The pros and cons of an antenuptial contract depend on what type of contract you choose. If you choose not to sign a prenup, you will automatically be married in community of property.
If you create a prenup, you will have to choose between the following two matrimonial property regimes:
Antenuptial contract out of community of property with accrual
Under this regime, each spouse states the value of their respective assets at the beginning of marriage. Thereafter, any assets are shared 50-50. One can state that specific assets be excluded from the accrual, for instance, inheritance and donations.
- The couple shares the increase in their assets accumulated during the marriage and the economically weaker spouse benefits.
- The spouses do not share their assets acquired before their marriage. In this way, the accrual system appeals to people who are already wealthy at the time of marriage.
- During the course of the marriage, each spouse handles his/her estate at will. There is no complex joint or equal administration.
- The spouses are not liable for each other’s debts. All that they share is their net assets. Therefore, if one spouse becomes insolvent (bankrupt), the other spouse is protected against creditors.
- The financially stronger spouse is required to share the assets that he/she acquired during the marriage.
- If one spouse is the breadwinner, the other spouse will be financially dependent on them.
Antenuptial contract out of community of property without accrual
Under this regime, assets acquired before or during the marriage stay separate throughout the course of the marriage. Assets are not shared, and each spouse has a separate estate.
This type of regime is usually used by those who have accumulated substantial assets prior to marriage and want to protect them.
- The divorce process for a prenup without accrual is financially quicker and simpler.
- The financially and/or economically stronger spouse is not legally obligated to share his/her assets with the financially weaker spouse.
- If one spouse becomes insolvent, creditors may not attach the assets of the other.
- Each of the parties is still legally obliged to offer financial support to one another should one spouse be unable to support himself/herself.
- In the case of divorce or death, a spouse is entitled only to those assets that he/she has accrued in his/her name – should one spouse choose to stay at home, say, to raise children, that spouse would not be entitled to the assets accumulated by the other spouse.
Read these related resources:
- Who needs an antenuptial contract and how do I make one?
- Antenuptial contracts for civil unions in South Africa
- Antenuptial contracts with a joint business
- Antenuptial contract out of community of property with accrual
- Antenuptial contract vs in community of property in South Africa