Marriage, Debt and Divorce – Should One Sign an Antenuptial?


When it comes to analysing marriage, debt and divorce, whether out of personal or professional interest, you will find a worldwide database of content, from the scientific and academic to the narrative and personal, at your disposal.

No matter the source, somehow financial circumstances always seem to be implicated as one of the most prevalent and instrumental factors surrounding divorce.

Even though half of South African marriages end in divorce, the last thing you and your partner want to think about when you’re about to make the ultimate commitment to one another is how you can protect yourself from a potential debt trap.

Marriage in community of property is the default contract under South African law, which means that you and your spouse have a joint estate, so you share or jointly own one another’s respective assets or property equally, in marriage and divorce.

Your spouse may wrack up a scrapheap of debt without your consent or knowledge, as dual credit cards, retail accounts and personal loans are very accessible these days. They may even hide their over-indebtedness from you out of guilt and shame. However, credit providers can still take legal action against both husband and wife to recoup debts incurred for the joint household.

This is why having an ante-nuptial contract drawn up, as unromantic as it may seem to an engaged couple in love, should simply be viewed as good financial planning.

Consider the possibility of one of you passing away before the other. Not having signed an ante-nuptial would mean that the surviving partner would have all their savings claimed by creditors to settle the junkyard of debt amassed by the deceased partner.

Would you want to leave your bereaved partner in financial ruin, if you were to pass while over-indebted? In view of this, an ante-nuptial can be seen as a way of protecting your partner from financial decisions you might make that don’t pan out the way you planned.

All that an ante-nuptial contract really does is define the conditions under which you are entering the marriage, in terms of your individual assets and liabilities, such as debt, that you are bringing into the marriage.

An ante-nuptial does not undermine your commitment to one another, but is rather a healthy way of taking responsibility for your respective decisions and the consequences thereof, as an individual and as an adult.

The unpredictability of life is undeniable and seeing to your financial security is simply a practical measure to take, especially if you have children to think of. Taking this reasonable step does not reflect the depth of your emotions for your partner, nor the sincerity of your commitment.

It merely acknowledges that debt and divorce are realities of life, which are sadly unavoidable for some. The one small thing we can do in case of such regrettable circumstances is to put a few responsible, protective measures in place.

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