ANTENUPTIALS: Let there be spaces in your togetherness

During the passionate romance, one forgets about the possibility of passing on or divorce as this would bitter the notion of love everlasting and even create a sense of incomplete embrace of loving each other ‘till death do us part”. The reality is that life has unexpected turns and it would be better to be prepared before exchange of vows to elude from a bitter battle when the “honeymoon phase” or other circumstances come to a sad end. Society has created a taboo by stating that entering into an Antenuptial Contract is preparing for divorce, but it’s really not as it safeguards you and your belongings, namely investments, cash flow and even properties if your spouse dies. One has to also be aware that debts can ruin financial life for families and one should secure the others assets to enable creditors to avoid continuing a sustainable household until you are back on your feet.

In today society we should note that by deciding to enter an antenuptial contract is not about not being fully committed or greediness but rather protecting your investments not only for yourself but for your spouse as well as children resulting from the marriage.

Should you decide to enter an Antenuptial Contract, you would be governed by accrual system. The accrual system is a formula of allocation of the assets that are assembled up throughout the matrimony. This is best simplified in a description in that each party is permitted to take out the asset worth that he or she conveyed into the matrimony, and formerly they portion what they have assembled up together. It is important to consider an Antenuptial Contract as it safeguards you and your partner in that both parties are regarded as are as single a legal body which ensures that you are protected from your spouse’s creditors.

There are various matrimonial regimes that would govern a marriage.

ENTERING WITHOUT AN ANTENUPTIAL CONTRACT:

If you do not enter into an Antenuptial Contract, you will be married automatically in community of property. Married in community of property means that all your assets and belongings are put together as one and both parties enjoy the fruits thereof as well as debts in equal shares of the joint estate as partners. As partners, should one party decide to enter into an agreement; purchase of property or investment, of which your assets would be affected, the other party is required to provide consent is always required to sign off. As partners, should one party have an action against them or debt arises during the marriage, the other partner is automatically liable to the creditors. For example, should one partner become insolvent; the other is secured only if he or she possesses property which is not part of the joint estate. Everything in the joint estate will be attached and sold off to compensate any creditors.

MARRIGE OUT OF COMMUNITY OF PROPERTY WITHOUT ACCRUAL:

Entering in such a contract ensures that no sharing of profits and losses are shared between the parties. Both spouses have full and independent contractual capacity.

In simple terms, what’s yours remains yours and what is her remains hers. So upon death or divorce, each one gets their own assets back. If one party is in debt prior to marriage or incurs debt during the course of the marriage, the other party will not be liable and the party in debt will solely be liable for the debt incurred. 

This matrimonial regime ensures wide-ranging freedom and safeguards the individual estates of each party against dues by the other party’s creditors. 

Upon death or divorce, each spouse keeps control over their own assets and may do as they wish with their assets without “permission” from the other spouse.

 MARRIGE OUT OF COMMUNITY OF PROPERTY WITH ACCRUAL:

Entering in such a contract ensures a form of allotment, consistent with a primary objective of marriage, but allowing preservation of each party’s freedom of contract and capability to preserve their exclusive distinct estates. Parties can each decide to discount certain assets from forming part of the accumulated or joint estate. The consequence hereof is that by excluding an asset, the party will ensure that the specified asset will not form part of the joint estate at dissolution of the marriage and is completely excluded from the calculation of the net accrual value.

During the course of the marriage, each party may accumulate assets and incur liabilities. These accumulated assets and liabilities are separate from assets and liabilities prior to the marriage and therefore parties share in the accumulated assets and liabilities. Parties can decide to include in this matrimonial regime to state that any liabilities incurred after the marriage will be solely for the party whom incurred the debt. Parties can further state that any damages granted to either spouse for denouncement or for pain and suffering; any donations; legacies, or gifts that either spouse has received during the marriage, shall not form part of the accumulated joint estate. 

At dissolution of the matrimonial regime, the estate of each party is measured by inventory all assets and all liabilities then subtracting liabilities from assets and arriving at a net asset value. 

Marriage is the cherished unification and equal partnership in which is both parties wish for permanency, exclusivity and faithfulness and wish grow their mutual love for each other. By entering an Antenuptial Contract, one is not defaming the notion of marriage, but rather securing the future of both spouses in which they can continue to live and love each other for better or worse while safeguarding the unexpected financial implications that could cause bitterness and dissolution of the sacred union.

(NOTE: this article is for information purposes only. Each case depends on merits of matter and should be consulted with an attorney)