Antenuptial Contracts Explained

Why the contract matters

If you do not sign an antenuptial contract before your wedding, South African law automatically marries you in community of property. That is the default, and it cannot simply be changed by agreement afterwards.

Signing an ANC is the only way to be married out of community of property. The contract is therefore one of the most important financial decisions a couple makes.

The three marriage regimes in South Africa

• In community of property: the default when there is no ANC. Everything is shared in one joint estate.
• Out of community of property WITH accrual: you keep your estates separate, but you share the growth built up during the marriage. This is the standard ANC under the Matrimonial Property Act 88 of 1984 unless accrual is expressly excluded.
• Out of community of property WITHOUT accrual: complete separation. Each spouse keeps what is theirs, during and after the marriage.

In community of property (the default)

Without an ANC, the two estates merge into a single joint estate that both spouses own in equal, undivided shares. Assets brought into the marriage and acquired during it generally fall into this joint estate.

Debts are shared too. Because both spouses own everything together, certain major financial decisions need the consent of both spouses under the Matrimonial Property Act 88 of 1984.

Out of community of property with accrual

With accrual, each spouse keeps a separate estate, but the growth in each estate during the marriage is shared when the marriage ends. In simple terms, what you build together is shared, while what you owned before the marriage can be protected.

Each spouse records a commencement value at the start of the marriage. When the marriage ends, the spouse whose estate grew less can claim half of the difference between the two growths. Certain assets, such as inheritances and donations, can be excluded.

Out of community of property without accrual

This is complete separation of estates. Each spouse keeps their own assets and is responsible for their own debts, and there is no sharing of growth when the marriage ends.

It is often chosen where both spouses are financially independent, or where one spouse owns a business and wants to keep it fully separate.

How an antenuptial contract is made valid

An ANC must be signed before a notary public before the wedding takes place. A notary public is an attorney with an extra qualification to attest these contracts.

After signing, the notary registers the contract at the Deeds Office. Registration must happen within three months of the date the contract was signed. Once registered, the ANC is binding on the couple and on outside parties such as creditors.