What is an Antenuptial Agreement?
An antenuptial contract is a private law agreement between two parties prior to their marriage. Essentially, it creates a bespoke set of rules about what happens if the couple divorce or one of them dies. It is generally a good idea to enter into an antenuptial contract if:
Antenuptial contracts may also be referred to as "prenuptial contracts".
The most common reason for an antenuptial contract is to determine what happens with the couple’s estates in the event of a death, usually in a second or subsequent marriage situation. If someone has benefitted financially from a previous relationship, then they may wish to protect that wealth by providing that it passes in terms of a will to their children from that previous relationship upon their death.
Under South African law, these agreements are called "antenuptial contracts", and they cannot displace the law on intestate succession and maintenance. This is where the provisions of the Maintenance Act 1998 and the Intestate Succession Act 1987 come into play and make provision for parties who were not married in community of property.
Antenuptial contracts can also include detail on what a party is entitled to before the marriage, during the marriage and upon divorce , as well as upon the death of one of the parties. The most common reason for the inclusion of the provision that governs assets in the event of death is to exclude the spouse from benefiting from the deceased estate of their spouse. This is mainly applicable in the case of a second marriage, where there are children from a previous marriage to whom the benefit of that deceased estate may go.
Validity of the contract
Whether a court will enforce the provisions of an antenuptial agreement will depend entirely upon the specific facts of each case. An antenuptial agreement is not valid unless the agreement was either entered into in court (prior to the marriage being registered) or was registered in the Deeds Office within three months from date of registration of the marriage.
If it is not satisfied, then the joint estate provisions take effect between the parties. It is however possible that a court may deviate from this strict rule if it considers it just and equitable to do so. A thorough investigation of the matter and supporting evidence would be required.
Once the marriage is registered, the antenuptial contract is registered in the Deeds Office. There may be a number of additional steps that are required should there be any business interests, partnerships or other external factors to deal with.
The Benefits of Using an Antenuptial Agreement Template
Antenupital agreement templates offer several advantages. Firstly, for couples who approach their prenuptial agreements as more of a formality and are not interested in negotiating laboriously over every clause, these templates provide an almost perfect starting point. It eliminates the need to research and draft from scratch and move directly into entering into a simple contract without hassle. A template drafted by a lawyer is accurate and comprehensive so there will be no need to go back and forth on technical issues or to check the legal jargon afterwards.
Secondly, it saves precious time. Couples busy with planning their wedding day will appreciate how easy it is to fill in the blanks and simply change a few terms to adapt to their unique circumstances. Most templates come with instructions on how to modify key terms easily to fit the couple’s specific situations without unduly modifying key provisions affecting compatibility with the law.
Thirdly, there are considerable cost savings. If both parties have already negotiated the broad issues and only require changing certain provisions, a template allows them to save the cost of paying a lawyer to draft their antenuptial agreement from scratch by re-drafting a premade document.
Essential Components of Your Antenuptial Agreement
Understanding what needs to be included in your antenuptial agreement can be quite challenging. We’ve assembled a concise list of the key elements that you shouldn’t forget about:
1. Assets
If you’re looking to safeguard your assets in the unfortunate event of a divorce, name your assets. What exactly comprises the marital estate? To rectify conflict later, delineate everything that is your exclusive property as well as what will be joint property in the marriage.
2. Debts
What happens if a spouse passes away or incurs debt? What happens to each spouse’s "separate debts?" Who is responsible for paying what and when?
3. Support
Will the court have discretion to make spousal support awards? If so, what are the considerations? If a spousal support agreement is created, what is the amount and duration? If children are involved, how does spousal support change?
4. Waiver of Rights
An antenuptial agreement should provide a voluntary and informed waiver of any and all statutory and common law rights to elect against the surviving spouse’s estate. The general rule is that during the course of the marriage, neither party can unilaterally dispose of property without express or implied consent from the other. Thus, an antenuptial agreement can (1) allow a spouse to do an estate plan without the other spouse’s consent (2) ameliorate the loss of economic security which a child-free partner may experience upon death of the other spouse. Typically, this article should have a cross-reference to the inventory attachment that shows the spouse exactly what they’re waiving their rights to.
5. Choice in Law
In many states, parties are required to include a choice-in-law article that specifically requires the application of applicable law to the validity of the agreement. Many states also require spouses to sign a waiver of rights to revoke an agreement after the agreement is executed. Failure to sign this article could render the agreement unenforceable because one spouse could effectively undo the entire agreement.
6. Antenuptial Agreement Attachments
For most states, an unincorporated Attachment is sufficient to create a valid antenuptial agreement. It’s not necessary to include the attachments in full or in part within the text of the agreement. Rather, the text will contain a general description of what’s contained within the Attachments: for example, "This agreement is based on the separate property disclosures reflected on the attachment." Importantly, the Attachments should be executed before witnesses, per the law in your state.
How to Personalize an Antenuptial Agreement Template
Personalize the template to your individual situation. Antenuptial agreement templates can be easily customized to fit your specific circumstances. You will need to determine what assets and debts you and your future spouse have and the amount of support you would like or would not want. Furthermore, a decision will need to be made as to what happens in the event that one of you dies, as well as a decision regarding your language regarding property acquired during the marriage. Prior to signing the agreement, your attorney would review the document with both you and your spouse to ensure that the template meets your needs and conforms with all legal requirements.
Avoiding Common Pitfalls
One of the most common mistakes when settling for an antenuptial agreement using a template is when it comes to choosing the type of agreement. Many templates offer one option only, the non-reciprocal option. In this case, the standard template will not provide for the parties that decide on a mutual system of accrual or when it becomes necessary to specify how a particular asset will be divided. Interestingly enough, this is in stark comparison with most template divorce agreements that are generated under the same conditions as above. These document generators still tend to cover both systems of accrual and will give you the option of specifying whether certain assets will be included in the joint estate or whether they will fall out of it. Another common mistake is in the accuracy of the prices of the assets set out in the agreement. When using a template agreement, there are no price indications set out for the particular assets . Your template document may state that assets are to be valued at a fair market value or their going concern value without specifying what these values are or how they will be calculated. The issue with this is that it may become a legally contentious point on the day of division of property because everyone has a different idea of market value and what is reasonable for the circumstances of the agreement. In this case especially, it is best to have an overinflated idea of value in the agreement so you can hedge your bets. Your template agreement will also try to avoid contemporary common law and statutory developments in the recognition of parties as spouses. It is therefore important that you specify the normal duration of your relationship and what the agreement will stipulate should a child of the marriage require maintenance from both or either party for their basic needs.
Legal Guidelines and Enforceability
Antenuptial agreements are an effective way to protect yourself in the event of a divorce; however, there are legal considerations that must be taken into account into order to ensure that these contracts are legally enforceable down the road. A common mistake made by many future spouses is to simply find a template online and fill in the blanks with their own information. The fact is that the only way to guarantee that your prenup will hold up in court is to ensure that you have independent legal advice. This applies to both you and your partner.
It is important to understand that even if you are reunited with your spouse decades after the contract was signed, the legalities surrounding antenuptial agreements will always be relevant. If your prenup does not have any enforceable provisions or if there is a significant amount of oversight, a judge may end up ruling your contract as invalid.
Obtaining the right legal advice is absolutely vital, especially when you are looking over a template. The only person who has your best interests at heart is your attorney and this is true both before you sign your prenup and after the two of you are lawfully married.
Factors to Consider Before Setting Up an Antenuptial Agreement
Antenuptial agreements are not only for the wealthy, but when substantial individual assets are at stake, these agreements become especially important and relevant. If a spouse or partner enters into a marriage or civil partnership with significant assets, it would be prudent to enter into an antenuptial agreement. Failing to do so may result in an unequal sharing should the relationship fail, and the latter may be contested post-divorce.
Similarly, for business owners, prenuptial agreements are essential for protecting their business interests. In addition, if one spouse is entitled to a prospective inheritance or windfall, going into a marriage with substantial assets, which in the absence of an antenuptial agreement may be subject to division in the event of a divorce, would be ill-advised.
Antenuptial agreements apply across the board to all heritable assets, so they can be used to protect anything from a modest estate to a multi-millionaire’s fortune. The Wealthy individuals marital plans could also change if there are children from a previous marriage.
Where to Find Reliable Templates
When seeking to create an antenuptial agreement, it is essential to have access to templates that are both legally sound and of high quality. The good news is that such templates are readily available through a number of online resources and legal firms. Here are some options for where you can find reliable templates for creating your antenuptial agreement:
- Online Resources: Numerous legal websites offer free or reasonably priced antenuptial agreement templates and modelling tools. These resources are often accessible in PDF or Word format, allowing for easy editing to include your unique information and transfer directly into a bespoke prenup.
- Legal Firms: Your attorney might have a set template that they use for clients. While this may not be the cheapest option available , having your attorney draft the prenup will save you the headache of formatting and ensuring legal compliance. It is also the bespoke model that offers the least possibility of a high court litigation being over turned by the validity of the original terms or conditions.
- Prenup Agencies: There are specialized agencies that offer bespoke prenuptial agreements for a small fee. This can be a good option if you are not concerned about paying a little extra for the convenience of not having to tailor the templates yourself.
- Local Attorneys: Many law firms offer free consultations where they will provide a booking model prenup template. This could be a great way to get a basic model that fits your requirements without having to pay a legal fee.
- Legal Aid Societies: If you qualify for legal aid, there are many agencies that provide free basic templates for prenup agreements.