POST-NUPTIAL CONTRACTS MARITAL FINANCES AND PEACE OF MIND.
Marriage is a beautiful union that signifies love, trust, and commitment. However, it’s also a partnership that involves sharing not only your life but your financial resources as well. While ante-nuptial contracts are well-known for defining the financial terms of a marriage before it begins, post-nuptial contracts are lesser-known but equally important legal documents that can help couples navigate their financial journey during their marriage. In this article, we will explore what post-nuptial contracts are, why they are becoming increasingly popular, and how they can benefit married couples.
What is a postnuptial contract?
A post-nuptial contract, often referred to as a post-nuptial agreement or post-marital agreement, is a legal document that a married couple creates after they have already tied the knot. Just like prenuptial agreements, post-nuptial contracts outline the financial rights and responsibilities of each spouse in the event of a divorce or other financial changes in the marriage, such as business acquisitions, inheritances, or changes in income.
Post-nuptial contracts are governed by Section 21 of the Matrimonial Property Act No 88 of 1984. Unlike ante-nuptial contracts, they require the parties to approach the court for leave to change the matrimonial regime subsisting between the parties.
Why do people enter into postnuptial agreements?
Financial Clarity and Communication: One of the primary reasons for the increasing popularity of post-nuptial contracts is the improved financial clarity and communication they provide within a marriage. Discussing and drafting such an agreement can open up lines of communication about financial matters, which can reduce misunderstandings and conflicts down the road.
Protecting Assets: Post-nuptial contracts allow spouses to protect their pre-marital assets, such as inherited properties, businesses, or investments. This can be particularly important if one spouse brings significantly more wealth or assets into the marriage.
Adapting to Changing Circumstances: As life goes on, financial situations can change. This includes business ventures, inheritances, or substantial salary changes. Post-nuptial contracts can be amended to adapt to these changing circumstances, providing security and flexibility.
Safeguarding Children’s Interests: For couples with children from previous marriages, post-nuptial contracts can help ensure that certain assets or financial arrangements are earmarked for the benefit of these children. This safeguards their interests and provides peace of mind to both spouses.
Estate Planning: Post-nuptial contracts can be a valuable part of estate planning, especially for older couples who may have complex financial situations and blended families. These agreements can define how assets are distributed upon the death of a spouse.
How do I go about entering into a post-nuptial agreement?
Open Communication: Start by having open and honest conversations with your spouse about your financial goals and concerns. It’s crucial to be on the same page.
Consult Legal Professionals: Seek the guidance of attorneys who specialize in family law or contract law.
Full Disclosure: Both parties must provide full financial disclosure. Hiding assets or financial information can render the contract invalid.
Define Terms: Clearly define the terms of the agreement, including the division of property, spousal support, and any other financial arrangements you wish to address.
Legal Review and Application: Once the parties are clear in their intentions an application must be place before the courts.
What does the application deal with?
The application will need to show the following:
– There are sound reasons for the proposed change;
– Sufficient notice of the proposed change has been given to all the creditors of the spouses; and
– No other person will be prejudiced by the proposed change.
– To the extent that the court is satisfied they are empowered to order that the parties prior matrimonial property system shall no longer apply to their marriage and authorize them to enter into a notarial contract by which their future matrimonial property system is regulated on such conditions as the court may think fit.
Post-nuptial contracts are a valuable tool for married couples seeking to safeguard their financial interests and maintain open communication about money matters. While it may seem unromantic to discuss such topics within the context of marriage, these agreements can provide a sense of security and clarity for both spouses. It’s important to remember that these contracts are not only about protecting assets but also about nurturing a healthy financial relationship within the marriage.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor any loss or damage arising from reliance upon any information herein. Please feel free to contact Meyer and Partners Attorneys Incorporated should you require further information or specific and detailed advice. Errors and omissions excepted (E&OE)
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