Written by: Phindile Le Bris Sithole-Spong
It was probably not until I heard it on Kanye West’s hit song “Gold digger” did I first know about prenups. And whilst I and every other millennial hip hop fan of that time screamed “we want prenup, we want prenup”, it took a good few years for me to understand the gravity of that line. As someone who was raised by a single mom. Marriage and anything that had to do with it was always an abstract idea. Something I always knew I wanted if only for the novelty of it.
But it wasn’t until I was about to get married many many years later that I had to put what I had been screaming in clubs at the top of my lungs into action. Having seen friends and mothers of friends being left with nothing after a divorce or a split. I knew I didn’t want that. Whilst a part of me always knew that I wanted to work and have my own money. I also knew too well from experience how much of the family and child-caring burden often falls on women. And how much of this responsibility is then later overlooked when it comes to splitting assets. This is why as the time drew closer, I sat my then-fiance down and discussed the importance of a prenup.
As a product of parents who were still married, the idea sounded strange and somewhat foreign but understanding my fears and experiences, we spoke it through with a lawyer and came to an agreement. The gist of which states that whoever is the primary caregiver keeps the family home. The rest of the prenup ensured that both our assets are taken care of as well as our future kids. Looking back I am so glad I took the initiative to draw up a prenup. Because whilst no one goes into a marriage thinking they will be part of the 41% of marriages to end in divorce. The reality is nobody knows, and as I like to put it to my friends, who you marry may not be the same person you divorce. People and circumstances change. Some for the best others not so much. This is why when I heard my friend Rosie talking about prenups and postnups on Instagram I knew I had to get her professional expertise.
Phindile Sithole-Spong: Hi Rosie, so this must have been my longest intro to date. However, I feel so passionate about pre and postnups that when I heard you talking about them at a bridal expo no less I knew we had to chat. First off can you explain what a prenup and postnup is?
Rosie Kaseke: Hi Phindi, I must start by thanking you for the opportunity to share my thoughts and observations on a seriously underestimated topic around the world. In essence, a prenuptial agreement (also known as ‘antenuptial’ in South Africa) is a contract entered into by two individuals before they get married. In this contract, the individuals agree to get married outside of Community of property, or as is commonly stated, “what is yours is yours and what is mine is mine”. The consequence of this is that in the event of divorce, each individual should walk away from the marriage with all their assets and liabilities. It is important to note that in South Africa there are two types of prenuptial agreements, namely: 1.) Out of community of property with the accrual system (where you share the assets obtained in the course of the marriage) and 2.) Out of community of property without the accrual system (where you never share anything in the course of the marriage). A postnuptial agreement is the same as a prenuptial, except a postnuptial is entered into by the parties after they are married. This is usually seen in the event where couples who are married without a prenuptial contract decide that they want to change their marital regime, or if the couple did enter into a prenuptial agreement, but they later discover that their prenuptial agreement was not properly registered. The results of pre-and postnuptial agreements are the same.
PSS: I’ve always thought that everyone should have a prenup. Especially women and doubly so, women of colour who are at the bottom of the food chain for so many things from pay gaps to abuse etc. What is some advice you would give to a woman reluctant to get a pre or postnuptial agreement?
RK: Honestly, from the cases, I read in Law school to the clients I have spoken to briefly face-to-face, you cannot go wrong by entering into a prenuptial agreement. I have heard some people jokingly say, but what if I marry a wealthy person, I want half of their assets. I always think that if that wealthy person loves you, they will happily gift you some of those assets during your marriage… On a serious note, one can never know the financial risks your partner may one day take. Should things not work out in their favour, even the little that you have will be jeopardised if you have not made the effort to protect your assets. I am yet to come across a case where entering into a prenuptial contract caused more harm than good.
PSS: In the case of South African law, if a couple marries without a prenup and never gets a postnuptial agreement, what is the law around the division of assets in the case of divorce or separation?
RK: In South Africa, our marriages are governed by the Matrimonial Property Act (“the MPA”). Before I proceed, it is paramount that I mention that South Arica is unique in that due to our melting cultural pot, there is more than one system of marriage, for example, couples can get married in terms of customary law (usually for African cultures) and Islamic marriages also have their own system. There are currently some interesting developments around them in our law.
In terms of the MPA that governs civil marriages, a couple that marries without a prenuptial or postnuptial agreement will automatically be married in community of property. This means that the couple’s assets will essentially become joint and in the case of divorce, the assets of the couple will be split in half and each individual will walk away with a fifty percent share. The assets will only be split in the event of a divorce.
PRIVATE SIDE NOTE: The assets will only be split in the event of divorce and not merely a “separation”. A divorce is when the Court of law has handed down a ‘divorce decree’. A separation is merely a domestic arrangement between the couple and the Court is not necessarily involved here (I may be mistaken).
PSS: In your experience have you ever found that a couple drew up a prenup only to not want it implemented or want it changed? And if so how easy is it to do so?
RK: I have not experienced this kind of event. However, I think that like a couple entering into a postnuptial agreement, the process would be similar. The process involves simply an application to the High Court. In the application, the parties would jointly state and request the Court to change their marital regime from out of community (with or without accrual) to one of in community of property. The drafting of the application should be done with the assistance of a trusted legal professional. Although the drafting process could take a few days to a few weeks, getting a Court date on which the couple can appear before a judge is usually the part that takes long. So to answer your question, it is fairly easy to change one’s marital regime.
PSS: I know for many of our reader’s prenups and postnups may not even be a topic or discussion they have thought of having. What is the best way to bring about prenuptial or postnuptial discussions?
RK: It depends on who your partner is (joke).
At the wedding expo I recently worked at, I found that many couples had thought about it in their capacity, but had not brought it up with their partner mainly because they did not know enough about the different marital regimes to even bring up the conversation. It was incredibly interesting to see how the couples were enthusiastic to start the conversation once I or one of my colleagues broke it down for them simply. So, your readers would be surprised that their partner might be curious to know their options. It just takes a little bit of effort, i.e. do a little bit of research, consult a lawyer, etc.
I think a good starting point for your readers would be to mention your personal story (at the beginning of the article) and ask their partner how they feel about the topic, and take it from there. It is indeed a difficult topic to discuss, but one which must be discussed. Each individual should feel free to state their reasons for why they want to enter into a pre-or postnuptial agreement, and not feel like their partner will be disappointed or irritated.
PSS: Before getting a prenup myself, I always thought broaching the subject implied that I did not trust my partner or that I was betting on my marriage to fail, but I now know that’s not what it means. It’s just a way to protect both parties. What do you say to clients or one half of the couple feeling like they are not trusted during the process.?
RK: As a young girl I would protest and tell my mum that I will marry rich and marry for love. She responded that if I loved my partner I would enter into a prenuptial or postnuptial agreement and that if my partner truly loved me, he would do the same. Haha.
As you have rightly said, it is a way to protect both parties. It is not a matter of trust or dishonesty. The truth is that we are in a generation where everyone is encouraged to be more business-minded or more entrepreneurial and take more risks to live a better life. Some of those risks may not pay off, or may even lead to the complete ruin of your partner’s assets. Now if you are not protected by a prenuptial or postnuptial agreement, the law will simply take your assets too, to cover the loss that your partner might have incurred in taking a big risk, whatever it may be. This may sound like you are not trusting your partner, but in fact, this can be reversed. If the one partner’s assets are protected, you will at least have something to live on as a couple. This is just one example of how any mistrust between couples around this topic can be viewed. Please remember, just because a couple enters into a prenuptial or postnuptial agreement, nothing stops either partner from sharing their gains with the other.
PSS: I remember when I signed my prenup with my then fiance now husband, we were assisted by a lawyer friend who did it for us as a wedding gift but I know people are wondering how much it costs to get a pre or postnup?
RK: The cost will depend on the lawyer assisting you. In South Africa, the prescribed fee, but the Law, for the drafting of marriage contracts sits at roughly R2350.00 (the prescribed legal fees change over the years). This does not include the consultation fee that your lawyer may charge. Some lawyers may charge less than the prescribed amount, as in your case, you received it as a wedding gift (we all need such friends!). I would say that a good price is between R2000.00 – R3000.00.
Be wary of companies that advertise cheap contracts as they are usually not in the business of providing legal services, and they may provide some sort of a standard template. Like most things in real life, no standard template is to be fully trusted as each scenario and couple is different. It is best to obtain a tailor-made contract, and that is why it is vital to contact a lawyer that you trust.
PSS: As a lawyer can you highlight some pros and cons to a pre or postnup?
RK: Now that I have asserted my position on the necessity of a prenuptial or postnuptial contract, it is challenging to find any cons. Honestly, other than the financial costs of obtaining the contract, in the beginning, the long-term benefit far outweighs the cost. It is a necessary investment in your and your loved one’s finances and happiness. I cannot the disturbance in peace of mind someone going through a ruthless divorce must feel when they have to share in their hard-earned gains or the losses of their partner.
If a couple cannot initially afford to obtain a contract before they get married, they should seriously consider saving for a postnuptial contract and obtain it in the course of their marriage. Once again, it shouldn’t be viewed as an expression of mistrust in your marriage. If anything, it is an expression of true love that you wish to protect your loved one.
PSS: As a space that celebrates couples of all genders, races and sexual orientations, I’m curious to know, are prenups valid for same-sex couples and couples from the LGBTQIA community?
RK: I love this question. At the wedding expo I previously mentioned, a young lesbian couple asked me the same question. The answer in South Africa is ABSOLUTELY YES!
PSS: Finally, when all is said and done, how enforceable are pre and postnuptial agreements?
RK: They are highly enforceable.
In South Africa, it is quite simple: any prenuptial and postnuptial contract entered into and registered in our High Court is as enforceable as any commercial contract. That contract will be the deciding factor of how the property of the couple will be split (or not), should there be a divorce. So, if the couple entered into a pre-or postnuptial agreement, the couple is legally bound by that agreement. And once again, if the couple has not entered into any of these agreements, their property (assets and losses) will be split in half.
Lastly, I must emphasise that the prenuptial/postnuptial agreement must be properly registered. So spouses, or soon to be spouses, must ensure that their lawyer (please get a good one) advises them correctly and ensures that their marital agreement is properly registered with the relevant institutions, otherwise, there will be serious issues (to put it lightly) in the event of a divorce.
PSS: Thank you so much for your time and for sharing your wisdom and insights with us.
RK: Thank you for allowing me to share my insights on this topic. There is so much more for your readers and their friends to learn, and I hope they take the time to do some reading or watch some of the ample informative videos online about the topic.