My job as an attorney is to act in the very best interests of my client and my client only. That is my ethical duty and that is what a client pays me to do. When I am consulted alone by a client who instructs me to draft an antenuptial contract, my approach is exactly the same. That approach would be to draft the contract in the best way possible to protect my client in the event of divorce years later.
I once was instructed by a young man who was about to marry a beautiful lady. He seemed to have quite a few assets and a bright future ahead of him. He had professional qualifications too, whilst his fiancé did not appear to have much money and neither did she have professional qualifications.
Based on my advice, my client chose to marry with the exclusion of the accrual system. This would mean that if they got divorced, he would keep whatever he bought or owned, and she would keep whatever she bought or owned either before or during the marriage.
To protect my client I insisted on a clause reading that “each party shall have full control of his or her separate finances and personal property wherever located and shall have full rights to sell, lease, mortgage or otherwise dispose of such property and receive all income, rents and profits derived from such property without restriction or interference from the other”.
Very often I find that antenuptial contracts do not include clauses relating to personal maintenance to be paid by one party to the other in the end of divorce. It is important to deal with this as it could lead to problems at a later stage. One party at time of divorce may insist that even though they are married excluding accrual, the other party still has a legal duty to maintain them.
The clause I included, to cover my client, reads as follows: “Neither party is under obligation to maintain, support or to make any form of financial provision to or for the benefit of the other party at anytime of separation or divorce. This does not include maintenance payments for any children that will be decided by the court”.
Very often, similar to personal maintenance, pension is not covered in an antenuptial contract either. To cover my client, who had quite a large pension building up, I included the following clause: “Any pension contributed by either party shall remain the property of that party in the event of separation. Each party agrees that an individual pension will not be split at the time of divorce or any time in the future and agree to waive any right a party may have over the other’s pension”.
To cover my affluent young client I also included a clause dealing with his death. The clause read that the prospective husband and prospective wife “waive the right to share in each others’ estates unless otherwise stated in a will, waive the right to spousal maintenance both temporary and permanent, and waive the right to any rights based on the period of cohabitation of the parties”.
The above clauses were absolutely essential in the above case. I find often that attorneys often bash out contracts without really applying their mind to each individual client and case. Every case is different. The drafting of an Antenuptial Contract is a specialised field of the law and you need a specialist in family law to draft it. The job of the attorney, whether acting for a rich or poor client, man or lady, is to act in the best interests of the client in the drafting of the contract.
article written by Cape Town divorce lawyer, Peter M Baker