The Sunday Mail
A PRENUPTIAL or premarital agreement — or prenup, in short — is a contract entered into by two people prior to marriage. The content of a prenuptial agreement can vary, but commonly includes provisions for division of property and spousal support in the event of divorce or breakup of a marriage.
An antenuptial agreement, also called postnup, is signed during a marriage.
Most jurisdictions stipulate that a postnup should not be signed in contemplation of divorce but, rather, a change in your financial situation.
An antenuptial agreement or a prenuptial agreement permits parties to individually retain certain assets during the marriage and after the union if divorce arises.
This will prevent some of the common fights that we witness in the courts.
Antenuptial contracts must be interpreted in accordance with the ordinary rules applicable to bona fide contracts. Where the intention of the parties is clear, that should be adhered to.
At common law, under the antenuptial contract, the general capacity and property rights of the parties remain unaffected by the marriage.
They retain their separate estates. They are not liable for each other’s debts, with the exception of those contracted for household necessities.
The contracts and other juridical acts of one spouse are not binding on the other. If the husband alienates his wife’s property without her consent, she may recover it from the third party with the rei vindication.
In addition, the spouse whose property was improperly alienated, hypothecated or otherwise disposed of can take personal action for damages against the other.
The object of an antenuptial contract is to exclude the normal legal consequences of marriage, particularly community of property, and to replace them with the outcomes desired by the spouses and which the law allows them to choose.
The most important characteristic of an antenuptial contract is regulation of the matrimonial property system of the parties.
In other words, an antenuptial contract primarily determines the nature of the legal principles that govern the financial position of the spouses and it does not actually lead to contractual claims against each other.
For a more detailed treatment of prenuptial and antenuptial contracts, read the judgment of the High Court in Roche v Middleton & Anor [HH-198-16] [per Chitakunye J (as he then was)].
Equitable distribution
It has already been established that a prenuptial agreement sets the rules for the court to follow regarding each party’s interests in the couple’s marital assets in the event of a divorce or one partner’s death.
In the absence of a prenuptial agreement, the court divides a divorcing couple’s assets according to the principle of equitable distribution.
The principle states that each partner may receive a share of the marital property in accordance with his or her contributions to the marriage, and his or her financial and personal needs following the divorce.
The contribution can be direct or indirect.
By setting these rules, a prenuptial agreement can do the following:
Ensure that an individual’s children from previous relationships receive their share of his or her assets after his or her death;
Provide for a former spouse after one’s death;
Limit access by a business owner’s partner to his or her business-related assets following a divorce;
Determine which partner may take ownership of specific pieces of shared property after a divorce; and
Keep specific heirlooms and other pieces of property within a family.
Legal requirements for an antenuptial contract
There are various requirements in terms of the law for a valid antenuptial contract.
In terms of Section 2 of the Married Persons Property Act,
The contract only applies to marriages after January 1, 1929.
The matrimonial domicile must be Zimbabwe (this means the intention of the parties to the marriage must be to consummate their marriage relationship within the borders of Zimbabwe)
The contract must be in writing.
Both parties to the marriage must sign the document that embodies the contract.
The contract is only valid if signed before the solemnisation of the relevant marriage.
The contract must be executed before two persons as witnesses. One of those persons must be a magistrate.
The document embodying the contract must follow as closely as possible the format set out in the schedule to the Married Person Property Act.
The document must follow closely the applicable regulations in Part I of the Deeds Registries Regulations, 1977.
The document must be registered with the Registrar of Deeds within 28 days after its execution, that is, its signing. The document shall not be valid unless registered.
A notary public must prepare the document.
Engage your counsel for proper advice on what works for you.
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 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]
