Before saying I do!! – Antenuptial contract

Zakiyyah Williams

In South African law there are two matrimonial property systems people can choose from, a marriage in community of property or a marriage out of community of property. 

The marriage in community of property means there is one joint estate that belongs to the spouses in equal and undivided shares. The estate consists of assets and liabilities acquired prior to or during the marriage.

​By marrying out of community of property, the spouses choose to keep their estates separate and whatever assets and liabilities they individually had before the date of marriage will remain part of their separate estates.

For your marriage to be considered out of community of property the couple would need to enter into an Antenuptial contract.

An antenuptial is a contract that ensures that the matrimonial property system of spouses is governed by an agreement. It is concluded between two unmarried parties who are legally competent to enter into a marriage with each other. To give effect to the contract, it must be followed by a marriage, and the contract must be registered in the Deeds Office within 3 month’s of signature after which it is given to the couple.

The main purpose of an antenuptial contract is to exclude community of property and profit and loss as well as to include or exclude the accrual system from the marriage.

A typical Antenuptial contract will provide that in respect of property and contracts there is no change in the legal status of the parties. Each has his or her own estate and neither is liable for the debts of the other.

There are two types of marriages out of community of property, namely out of community of property with exclusion of the accrual system and out of community of property with the inclusion of the accrual system.

If it is without the accrual, the partners keep what is theirs before marriage and also keep what becomes theirs after marriage. If the agreement is with the accrual system, each party still keeps his or her own estate, but the agreement determines how the growth in each partner’s estate will be shared.

The accrual takes effect when the marriage ends by either divorce or death. You cannot make a claim for the accrual while still married. When the marriage ends, the partner with the smaller accrual has a claim against the estate of the other. The claim is for 50% of the difference between the growth in the values of the two estates or any percentage as agreed to by the parties in their antenuptial agreement.

Some of the advantages of a marriage out of community of property without the accrual are:

  • Both parties have full contractual capacity which means that a party can separately sign all contracts, enter into business ventures and the one party is not liable for any debts of the other party.
  • The estate of the other party cannot be attached if one party becomes insolvent.
  • Inheritance or donations received by either party is expressly excluded from any accrual.

Some of the advantages of a marriage out of community of property with the accrual are :

The advantages are the same as a marriage out of community of property without the accrual. The only difference is that when the marriage ends through death or divorce the accrual in the estates is dealt with in the manner mentioned previously.

The same three benefits apply namely, 

  • you have full contractual capacity, 
  • only the insolvent person’s estate can be sequestrated as opposed to both parties estates; and
  • if you inherit or receive a donation it will remain your exclusive property.

If you choose the marriage out of community of property with the accrual principal, it is important to give a brief description with the estimated value of the assets that you wish to exclude as well as the assets which you would like to specify as your starting value.

Keep in mind that it is not necessary to specify any assets to be excluded or to serve as your starting value. Most young couples who do not have substantial assets may choose to exclude nothing.