Antenuptial Contract commencement value wrongly set to zero
It is becoming so common nowdays that clients are consulting me with a view at getting divorced, and instructing me that the antenuptial contract was not correctly drafted, and does not give a true reflection of the parties intention at the time of signing. It is so important to consult your own attorney at the time of signing, and to give your fiancé an opportunity to consult his/her own attorney too, as opposed to you both using the same attorney.
Family, Estate & notarial legal services
In one particular case my client bought a house in 2001, and got married in 2006. She had been paying the bond throughout, and her husband had never contributed financially. He was not even working. The value of the house was R900 000 in 2010, with only R100 000 owing on it.
My client’s antenuptial contract was one with the application of the accrual system. This would usually mean that they would split everything accrued during the course of the marriage if they got divorced. The problem in this matter was that her and her fiancé had each indicated their net commencement value to be “nil”.
If that contract had been correctly drafted it should have stated that my client’s property would be excluded from the accrual, as she had already made many bond payments towards it. It was not however expressly excluded from the accrual, and neither was my client’s net commencement value “nil” at the time of signing, as erroneously reflected in the antenuptial contract.
On perusing the contract and looking for a loophole, I saw a clause however reading as follows: “That there shall be no community of property between the said intended consorts, but that he or she shall respectively retain and possess all his or her estate and effects, movable and immovable property, in possession, expectancy, or contingency, or to which he or she has or may have any eventual right or title, as fully and effectually as he or she might or could have if the said intended marriage did not take place”.
The question is if the matter would go to court, whether the court would allow my client to retain the fixed asset as her sole and absolute property or not. I advised my client that irrespective of the above clause in the agreement, her husband would no doubt argue that the net commencement value of each party was reflected to be “nil” and that he should be entitled to half of the equity in the house, which house was not mentioned by physical address and neither was it expressly excluded from the accrual.
I advised my client that even though there were contradictions in the antenuptial contract, she had a strong case for undue enrichment should she decide to go ahead with the divorce. Her case would be that her husband never paid the bond and that it would be undue enrichment for him now to benefit from the equity. I advised her to get her bond statements together if necessary to be able to prove in court that the bond payments came off her account every month.
The above matter once again illustrates how important it is to make sure that your antenuptial contract is correctly drafted. It is always in your interest to consult your own attorney to peruse the contract before signing. This could save you your valuable assets if you got divorced in the future.
article written by Cape Town divorce expert, Peter M Baker
Legal Unions - antenuptials, cohabitation, etc...
An antenuptial contract is also known as an "ANC" for short, or a "prenup".
- Marriage Antenuptials
- Example of ANC with accrual marriage contract.
- Drafting an ANC with accrual contract
- ANC with accrual erroneously has zero commencement value
- ANC with accrual template for the division of the net estate
- Enforceability of antenuptial contracts Overseas
- Amending an antenuptial contract
- Marriage Postnuptials
- Postnuptial contract - for when you're already married and realise you should have entered into an antenuptial contract, or you want to amend an existing agreement.
- Deeds Registries Act
- Cohabitation agreement
- Contracts of permanent relationship
- Life partnerships
- Universal partnerships
- Common law partnership - this concept does not exist in South African law
Antenuptial Contracts & other legal unions
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