The Ante Nuptial Contract (ANC) is an extremely important document, however, most people do not understand its importance or its implications. The ANC applies to marriages out of community of property and governs what will happen to all assets and liabilities on death or divorce. Parties give considerable thought to their Wills but often do not understand that the very ownership of the assets that they dispose of in the Will may be questioned if the ANC is not properly drawn.
Why have an ANC and what is accrual?
Marriage in community of property applies automatically where parties do not conclude an ANC, meaning that all of the parties’ assets and liabilities, whether acquired before or during the marriage, fall within one joint estate. One of the consequence of this is that creditors are not obliged to tell the difference between which party owns what; they can seek satisfaction from the entire joint estate. Marriage in community of property is also extremely risky for parties conducting their own businesses or incurring debts, and it can often limit the parties’ contractual capacities.
Marriage out of community of property without accrual gives the parties absolute independence of contractual capacity and protects the estates of each party against claims by the other party’s creditors, but there is no provision for any sharing. There is thus a heavy onus to prove that he / she was entitled to anything from that party’s estate on dissolution of the marriage. Where one party stays at home to raise children and does not contribute financially towards the marriage, and the other spouse works and accumulates assets, the former may find herself with nothing and no claim to the assets of the latter.
In Marriage out of community of property with inclusion of the accrual system each spouse retains and controls their own estate for the duration of the marriage. However, on dissolution of the marriage, the spouses will share in the accrual or growth of their respective estates.
ANC without accrual
Assets acquired before or during the marriage remain separate throughout the course of the marriage. Assets are not shared and each party has a separate estate.
- If one party goes insolvent, creditors may not attach the assets of the other party; and
- Each party is legally obliged to offer financial support to one another should one be unable to support himself/herself.
- In the case of death or divorce, each party is only entitled to those assets they have accrued in their name. Should one party choose to stay at home to raise children then he/ she would not be entitled to the assets accumulated by the other partner.
ANC with accrual (most popular choice)
Each party states the value of their respective assets at the beginning of marriage, and thereafter, any accrual in the respective estates are shared. Parties can state that specific assets be excluded from the accrual, for example, pension funds, cars, shares. Inheritances and donations between spouses are excluded automatically.
- Both parties share in the wealth accumulated during marriage;
- If each party owned property before the marriage, it remains in their respective names;
- Parties conduct their own independent financial affairs;
- If one party goes into debt, it cannot be claimed from the estate of the other party;
- In the case of divorce, any assets accrued whilst married that are not excluded in the ANC are shared – it doesn’t matter who acquired them. Each party’s final net asset value is calculated by subtracting their liabilities from assets and deducting their commencement value nominated in the ANC;
- The ANC can be tailored to suit your needs; and
- It protects a party who remains at home to care for the family.