Postnuptial Agreement in South Africa: What You Need to Know
Marriage is a real commitment, and it comes with many legal implications. One of the aspects of marriage that often goes unaddressed is the financial aspect. This is where postnuptial agreements come in. A postnuptial agreement is a legal document that is created after a couple gets married, outlining how their assets will be divided in the event of a divorce or other separation. In this article, we will discuss postnuptial agreements in South Africa, and what you need to know if you`re considering creating one.
What Is a Postnuptial Agreement?
A postnuptial agreement is a legal agreement created between two people who are already married. It is an agreement that outlines how their assets will be divided in the event of a divorce, separation, or death. Unlike a prenuptial agreement, which is created before a couple gets married, a postnuptial agreement can be created at any time during the marriage.
Why Create a Postnuptial Agreement?
There are many reasons why a couple might choose to create a postnuptial agreement. Some of the most common reasons include:
1. To protect assets: A postnuptial agreement can be used to protect assets that were acquired before the marriage, or to protect assets that have been inherited or gifted.
2. To establish financial expectations: A postnuptial agreement can be used to establish financial expectations within the marriage, such as how finances will be managed and how debts will be handled.
3. To plan for the future: A postnuptial agreement can be used to plan for the future, such as in the event of a divorce or other separation. It can outline how assets will be divided, how spousal support will be handled, and how child custody and support will be determined.
Postnuptial Agreement Law in South Africa
In South Africa, postnuptial agreements are recognized under the Matrimonial Property Act of 1984. This act recognizes three different matrimonial property systems, and each system has its own rules regarding postnuptial agreements.
1. In-community of property: In this system, both spouses share all assets and liabilities equally. In-community of property couples can create a postnuptial agreement to change the terms of their agreement, but both parties must agree on the changes.
2. Out-of-community of property with accrual: This system allows each spouse to keep their own assets and liabilities, but any assets that are acquired during the marriage are shared equally. Out-of-community of property with accrual couples can create a postnuptial agreement to change the terms of their agreement, but both parties must agree on the changes.
3. Out-of-community of property without accrual: In this system, each spouse keeps their own assets and liabilities, and there is no sharing of assets or liabilities. Out-of-community of property without accrual couples can create a postnuptial agreement to change the terms of their agreement, but both parties must agree on the changes.
How to Create a Postnuptial Agreement
Creating a postnuptial agreement can be a complex process, and it is important to consult with a legal professional who is experienced in family law. Here are the general steps involved in creating a postnuptial agreement:
1. Consult with a legal professional: A legal professional will be able to guide you through the process of creating a postnuptial agreement, and can help you to understand your options and the legal implications of the agreement.
2. Outline the terms of the agreement: You will need to work with your spouse to outline the terms of the agreement, including how assets will be divided in the event of a divorce or separation, and any other terms that you wish to include.
3. Have the agreement drafted: Once you have outlined the terms of the agreement, a legal professional will draft the agreement for you.
4. Sign the agreement: Both parties must sign the agreement in the presence of a notary public or commissioner of oaths.
In Conclusion
A postnuptial agreement can be a useful tool for married couples who want to protect their assets and plan for the future. It is important to consult with a legal professional who is experienced in family law when creating a postnuptial agreement, to ensure that the agreement is legally binding and can be enforced if necessary. If you`re considering creating a postnuptial agreement, start by consulting with a legal professional who can guide you through the process and help you to understand your options.