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How Does an Antenuptial Contract Affect a Divorce?

Introduction

When couples get married in South Africa, their marital regime — the way their assets and debts are treated in marriage and divorce — is determined by whether they have an antenuptial contract (ANC) or not. If you’re going through a divorce and you signed an ANC, it will have a direct impact on how your assets are divided.

In this article, we’ll explain what an antenuptial contract is, how it affects divorce proceedings, and what you need to know when dissolving a marriage with an ANC in place.

What Is an Antenuptial Contract?

An antenuptial contract is a legal agreement entered into by a couple before marriage, setting out how their assets and debts will be managed during the marriage and upon divorce.

There are two main types of marital regimes under an ANC:

• Out of Community of Property without Accrual
• Out of Community of Property with Accrual

Each has different implications during divorce.

How Each Marital Regime Affects Divorce

1. Out of Community of Property Without Accrual

In this arrangement:

• Each spouse keeps full ownership of the assets and debts they had before and acquired during the marriage.
• There is no sharing of property upon divorce.
• You have no claim to each other’s assets or liabilities.

Impact on Divorce:
The divorce process focuses on settling matters like maintenance and child care, without dividing personal assets.

2. Out of Community of Property With Accrual

This is a more balanced option, offering some sharing of wealth accumulated during the marriage while protecting what each partner owned before.

How it works:

• At the start of the marriage, each spouse declares their starting asset value.
• During the marriage, assets acquired are tracked separately.
• Upon divorce, the spouse whose estate increased less during the marriage is entitled to half of the difference between the two accrual values.

Impact on Divorce:
Both spouses must declare their current estate values, and an accrual calculation is done to determine if a claim exists.

Key Considerations When Divorcing With an ANC

• Proof of starting asset values is crucial for accrual calculations. This would have been recorded in the ANC.
• Inheritances and donations received by either spouse during the marriage are typically excluded from the accrual calculation.
• Debts incurred by each spouse remain their individual responsibility unless otherwise agreed.
• The ANC terms remain legally binding, so it’s important to review your original contract when preparing for divorce.

What If There’s No Antenuptial Contract?

If no ANC was signed before marriage, the couple is automatically married in community of property, meaning:

• All assets and debts are shared equally
• Upon divorce, everything is divided 50/50 unless the court rules otherwise

Final Thought

An antenuptial contract plays a vital role in determining how assets and debts are handled during divorce. Whether you’re married out of community with or without accrual, it’s essential to understand your rights and obligations before starting divorce proceedings.

At 123Divorce.co.za, we provide expert, affordable divorce services and can help you navigate the legal and financial details of your marital regime.

Contact us today for clear, professional guidance through your divorce process.