Prenuptial, antenuptial contracts

28 May, 2023 - 00:05 0 Views

The Sunday Mail

“TILL death do us part” is one of the common statements couples repeat before marriage officers. The thinking at the time is that the marriage will last for a lifetime and, indeed, till the funeral comes home. There is also anticipation of cooperation between the couples.

The sad truth, according to one research, is that approximately 20 percent of marriages end within five years, and more than 30 percent crumble within 10 years. The High Court of Zimbabwe presides over 2 000 divorces on average per year.

It is important to consider all possibilities for the future before you get married. There is also need to protect the assets you held prior to entering the marriage, and affirm your right to certain assets you and your spouse procure during the marriage. If you have a child from a previous relationship, it is also critical that you protect his or her right to your assets through a prenuptial agreement.

A prenuptial agreement has been equated to a home insurance policy; although you hope you never have to use it, it can be a lifesaver if you do.

Marriage in business?

The obvious question is: What has my marriage life to do with my business? The answer is, if not managed well, it has everything to do with it.

There is so much talk about “private” and “privacy” but once a matter goes the court route, the “privacy” tag usually falls off.

Court proceedings are public. This means anyone can easily follow these proceedings and glean into your “personal” life. Your “personal” life, thus, needs to be managed so that it does not end up affecting your business life.

What is your legal strategy for the legal obligations that are ensuing from your private life?

In this week’s instalment, I am going to isolate one area you need to pay attention to as it has potential to affect even your businesses through legal proceedings — marriage. I am going to do a two-part series for this area. I hope it will add value to your knowledge bank.

Divorce is real

No one gets married with an intention to divorce, but some marriages still collapse. Conversations around what happens when the marriage fails are what many people avoid looking at, at the commencement of their marriages, but these are conversations many will have, usually at a huge cost through lawyers.

This means it is necessary to have these conversations, no matter how painful they are. In fact, marriage counselling should provide real engagement on these issues beyond asking people dull questions like: What’s your favourite colour or food?

Divorces can be “messy”

There is more investment in many circles in a wedding than the practical aspects and legal consequences of a marriage. Divorces in the past weeks and years have provided us with unsolicited information on something that would be sacred and long-hidden had it not been for the “irretrievable breakdown” tag being pleaded in court summons.

Matrimonial proceedings usually have serious strife when property is mentioned. The property can also mean the shares you own in your business.

A share is defined as a “bundle of rights”. It is an asset. This means they are also property, and a spouse can lay claim to these if they can prove contribution (either direct or indirect).

Legal regime governing property

Proprietary consequences under the Roman-Dutch common law are governed by the law of the husband’s domicile at marriage unless there is an ante-nuptial contract.

There are two statutes that regulate the proprietary rights of married parties. Please, note that marriages governed in terms of these statutes have to be recognised ones, in terms of the law.

For the avoidance of doubt, this refers to the Civil marriage; and the Customary Marriage, in terms of the Marriages Act.

Unregistered Customary Law unions are not recognised as marriages. They only have limited recognition.

The present article will not discuss unregistered customary law unions as this will be a detailed subject for another day. An unregistered Customary Law union does not receive recognition in terms of this legislation.

The statutes are:

The Matrimonial Causes Act [Chapter 5:13], and

Married Persons Property Act [Chapter 5:12]

The Married Persons Property Act provides that since January 1, 1929, all marriages that are solemnised in Zimbabwe are out of community of property. This means parties to the marriage can own property independent of each other.

A prenuptial or antenuptial agreement entails parties to an impending or existing marriage agreeing that they want to combine their assets acquired prior to contracting the marriage.

To be continued next week . . .

LEGAL DISCLAIMER: The material contained in this article is set out in good faith for general guidance in the spirit of raising legal awareness on topical interests that affect most people on a daily basis. They are not meant to create an attorney-client relationship or constitute solicitation. No liability can be accepted for loss or expense incurred as a result of relying in particular circumstances on statements made in the article. Laws and regulations are complex and liable to change, and readers should check the current position with the relevant authorities before making personal arrangements.

 Arthur Marara is a corporate law attorney practising law in Harare. He is also a notary public and conveyancer. He is passionate about labour law, commercial law, family law and promoting legal awareness and access to justice. He writes in his personal capacity. You can follow him on social media (Facebook Attorney Arthur Marara), or WhatsApp him on +263780055152 or email [email protected]


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