SOME COMMON ANTE-NUPTIAL CONTRACT QUESTIONS ANSWERED

1. As we live in England, will the contract be binding here in the event of a divorce?

In England, the terms of an antenuptial contract cannot limit or oust the divorce court’s power to make property and financial orders. However, the general approach of these courts, especially recently is that agreements freely negotiated between the parties to a marriage should be upheld, unless they were unfairly entered into or create injustice. The court is also more likely to uphold an agreement if one or both of the parties has come from a jurisdiction where prenuptial agreements are commonplace and enforceable. In the light of this, I think you would be justified to consider that it would be highly unlikely for an English divorce court to rule that your antenuptial contract would not be binding.


2. Please could you explain the concept of accrual? I think this is South African legal terminology so I am not familiar with it myself.

The basic concept of accrual is that, during the marriage, there is no change in the property rights and obligations of the parties, ie the situation remains exactly the same as it was before they married. Accrual only comes into effect on the termination of the marriage by death or divorce. On termination, the increases during the marriage in the respective estates of the parties are compared with each other. The difference between the largest increase and the smallest increase is determined. That difference is then divided between the parties either equally or in a proportion agreed to by them, with the highest-increase-party paying the appropriate amount to the lowest-increase-party.

3. All we want the contract to say is that anything that we bring to the marriage is separate, anything either of us gain during the course of the marriage is joint and anything either of us receive by way of gift or inheritance will also be separate. Is this possible?

Your contract can certainly provide for the terms you set out. You should compare what you propose with what the accrual system offers and decide which one you prefer.