Antenuptial contract

21 Jun, 2017 - 00:06 0 Views

The Herald

Rumbidzai Tawonezvi-Moyo
What is an antenuptial contract? Why would I need it? What is the process for obtaining one? These are some of the questions that this article will address in detail.

Zimbabwe Women Lawyers Association has written in previous articles about how the matrimonial property regime in Zimbabwe is out of community of property and out of profit and loss.

This means that property purchased during the subsistence of the marriage and registered in one spouse’s name is deemed to wholly belong to that spouse.

They may dispose of the property as they wish and make decisions pertaining to that property without consulting with their spouse.

Although this is the position of the law, it does not have to apply to one’s marriage. Parties may enter into an antenuptial contract which prevents the matrimonial property regime from applying to their marriage.

It is important to note that Antenuptial contracts may only be concluded by parties who are about to enter into a civil marriage, that is a marriage in terms of the Marriage Act Chapter 5:11.

What is an antenuptial contract?

Antenuptial contracts are established by the Antenuptial Contracts Act Chapter 5:01. Other jurisdictions may know this agreement as a Pre-nuptial contract or “pre-nup” as it may be popularly referred to. This is a written agreement between two people who are about to get married in terms of the Marriage Act Chapter 5:11.

This agreement governs how parties will own property once they are married.

For example, the contract may prescribe that anything purchased during the subsistence of the marriage will be jointly owned by both parties.

The contract may also determine how future earnings will be distributed between the parties, as well as the control that each party will have over the property.

The Ante-nuptial contract may also govern how the property shall be distributed between the parties when the marriage ends through death or divorce.

If the parties have children from previous relationships the contract may include a property distribution that involves them, or any children that the couple shall have.

The State requires that the contracts are fair and reasonable when entered into.

Due to the fact that this is a contract, it should conform to the requirements of a valid contract. It is not necessary to discuss each requirement in detail for the purposes of this contract, however, we will state a few requirements that will be important to note.

The first requirement is that the parties should have capacity to contract. This means that the parties should be above the age of eighteen years. This is in conformity with s78(1) of the Constitution of the republic of Zimbabwe which prescribes that parties may found a family at eighteen years old.

Why would l need an antenuptial contract

An Ante-nuptial contract allows individuals to plan the property distribution that they desire within their marriage. It is an agreement that the parties make that they believe will suit their union. It is tailor made to their marriage in that they may choose how they desire to distribute their property between themselves.

In Zimbabwe, the matrimonial property regime is out of community of property and out of profit of loss which means that property registered in one party’s name belongs to that party and they may dispose of it as they please.

This does not take into consideration that the other party who is not the title holder of the property may have also significantly contributed to the purchase of the property. They may have contributed directly by actually giving the title holder spouse some money which was used towards the purchase of the property.

They may also have contributed indirectly by catering to all of the household needs, which allowed the title holder to purchase the matrimonial property in question.

Our matrimonial property regime also does not reflect the cultural practices of this country.

For example, many women choose to register the matrimonial property in their husband’s names as a way to honour them as the head of the family despite the fact that they have contributed to the purchase of the matrimonial home.

This is all well and good until the parties develop irreconcilable differences and decide to go their separate ways. In the eyes of the law, the property is deemed to belong to the husband as he is the registered title holder of the property.

The woman is now placed in a position where she has to prove the contribution she has made to the property, which then becomes a very difficult task as she was not documenting any contribution she had made to the property as she did not anticipate that the her marriage would end due to divorce and not due to death.

An Ante-nuptial contract therefore allows you to stipulate how your property will be distributed upon death or divorce.

It also allows parties to stipulate the terms of property ownership within the marriage. So that, for example, even if the property is registered in one party’s name, the other party may still be considered an equal or part owner to the property.

Where parties may have children from a previous marriage, your contract can even stipulate that upon your death, those children may inherit certain property from you for example.

It is important to note here that as this is a contract, it should abide by the requirements of a valid contract, one of which is that the contract must be legal. So parties may not include any clauses which do not abide by law.

What is the process for obtaining one?

It is required that you seek the assistance of a legal practitioner who is also a registered notary public to draft a valid Ante-nuptial contract for you as they will be best suited to ensure that the contract complies with the requirements of a valid contract.

Twenty-eight days after the execution of the contract, a signed original copy of the contract shall be filed with the Deeds Registry as the registry duplicate together with two further originals that are certified by a notary public and lodged with the Registrar of Deeds.

We also advise the parties to keep one copy of the contract for their own records and another with their Legal Practitioner for safe keeping.

Any contract that is not registered in this manner will be deemed invalid. If parties draft a contract in the comfort of their own home and fail to register it in the prescribed manner they may therefore not be deemed to have a valid Ante-nuptial contract.

Upon filing of the Ante-nuptial contract with Deeds Registry, it may be inspected by any person after payment of the prescribed fee.

Entering into an Ante-nuptial contract is one essential way of ensuring that one’s finances are taken care of. It is also a loving way to ensure that parties have joint ownership of matrimonial property.

It is also a means of ensuring that your loved ones are taken care of according to your desires. The law is dependable however it does not always cater to your own personal needs.

For feedback questions and comments please feel free to email [email protected] or to phone our hotline number on 0782 900 900, 0776 736 873 or our toll free on 08080131

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