29 Oct What Is an Antenuptial Contract and Why Should You Consider One?
When two people decide to get married, they may think mostly about love, commitment, and shared life. But in South Africa, the marriage contract you choose, whether you sign an Antenuptial Contract (ANC) or not, has very real legal and financial consequences. The regime you’re married under affects how your assets and debts are handled during the marriage, and what happens if you divorce or one of you dies.
This article explains:
- What an antenuptial contract (ANC) is
- The different matrimonial property regimes in South Africa
- Pros and cons of each regime
- Why many couples consider an ANC
What Is an Antenuptial Contract (ANC)?
An antenuptial contract is a legal agreement you enter into before marriage that sets out how property, assets, and liabilities will be managed between the spouses.
Key points:
- It must be signed by both parties before the marriage.
- It must be executed in the required formal manner ( by a notary) and registered in the Deeds Registry to be effective.
- The default marital property regime in South Africa (if no ANC is signed) is that the couple is married in a community of property.
In short, an ANC lets you choose a different regime (usually married out of community of property) instead of the default.
The Matrimonial Property Regimes in South Africa
Here are the main regimes you:
1. In community of property
- If you marry without an ANC, you are automatically married in a community of property.
- This means all your assets and liabilities combine into a joint estate. Everything you owned before marriage, everything you acquire during marriage, and all your debts become part of this joint estate.
- Both spouses have equal management rights in the joint estate (though major transactions may require the other spouse’s consent).
- On divorce or death, the entire estate is dealt with as a joint estate, so there is no separation of what was yours vs what was theirs.
Pros:
- Simpler: you don’t have to draft and register an ANC if you accept this regime.
- From a “family unity” perspective, your property and liabilities are shared.
Cons:
- Your spouse’s debts and liabilities become your responsibility, too. If they go bankrupt, creditors can claim from the joint estate.
- Your estate planning may be more complex; assets you brought into the marriage lose their separate identity.
- People with significant assets, business risk, or high liabilities often find this regime risky.
2. Out of Community of Property
If you sign an ANC, you can choose to marry out of community of property, which means your estates remain separate. There are two main sub-options:
A. Out of Community of Property With Accrual
- You keep separate estates (what you owned before marriage, and what you acquire during marriage) during the marriage.
- At the end of the marriage (by divorce or death), a calculation is done: the “accrual” (growth) of each spouse’s estate from marriage-start to marriage-end is compared. The spouse whose estate grew less can claim half the difference of the increase.
- Assets or liabilities one spouse brings into the marriage (at the marriage date) are excluded from accrual.
- This regime is often seen as fair: you maintain independence during the marriage, yet share growth fairly.
Pros:
- Protection from spouse’s debt: since estates are separate, one spouse’s creditors can rarely claim from the other’s estate.
- Fair sharing of growth: if one partner paused their career (for example, to raise children) and the other built a business, the accrual system ensures fairness.
- Customisable via ANC: you can exclude specific assets from accrual if you wish.
Cons:
- More complex: you need valuations when the marriage starts, and careful record keeping.
- On divorce or death, you will have to calculate accruals, which can lead to disputes and increased costs.
- If you don’t exclude accrual in the ANC, it automatically applies, so you need to understand what that means.
B. Out of Community of Property Without Accrual
- Each spouse retains their separate estate both during and after the marriage. They keep anything they brought in, and anything they acquire, and no claim is made on the other’s growth.
- There is no sharing of the increase in each other’s estate.
Pros:
- Maximum independence: very good if both spouses enter the marriage with substantial assets and want to keep them completely separate.
- Excellent protection for someone with high risk (business owner, professional with liability) so their spouse is not exposed.
Cons:
- No sharing of “growth” may feel unfair if one partner contributed in non-financial ways (childcare, homemaking) and the other generated large assets.
- Less automatic fairness, requires clear thinking about equity and contributions.
Why Should You Consider an Antenuptial Contract?
Here are the key reasons why couples in South Africa often choose to sign an ANC:
1. Asset Protection And Liability Risk
If one spouse runs a business, has large debts, or professional risk (medical, legal, construction), being married in community of property exposes the other spouse’s assets. With an ANC, by opting for out of community of property, you can shield one spouse’s estate from the other’s liabilities.
2. Clearer Estate Planning
When you die or divorce, an ANC sets out the regime clearly. If you’re married in community of property, everything is shared. If you’re out of community with accrual or without accrual, your estate planning can reflect your wishes more clearly (especially where there are children from previous marriages, separate inheritances, etc).
3. Fairness and Financial Independence
Out of community of property with accrual is often described as offering the best of both worlds: each spouse retains independent control during the marriage (no shared liability), yet the accrual system ensures fair sharing of growth. This regime can reflect modern marriage dynamics (dual careers, one spouse stays home, etc).
4. Simplified Divorce/Death Consequences
Having a clear regime in place via ANC can reduce disputes later. If you know from the outset “we’re married out of community with accrual”, then on divorce, the calculation is more predictable than an unplanned regime.
5. Customisation
The ANC allows you to include or exclude the accrual system; you can exclude certain assets from the accrual; you choose what’s suited to your circumstances.
What You Should Know / Questions to Ask
- When must the ANC be done? Before the marriage. Once married, you need a court order (postnuptial contract) to change the regime, which is more complex.
- What formalities? Must be in writing, done by a notary, and registered with the Deeds Registry. If not properly executed, the default regime (in community of property) may apply.
- Which regime makes sense? Consider your assets before marriage: your and your spouse’s incomes, business risk, career plans, children from prior relationships, and whether you want shared growth.
- Record keeping: If you choose out of community with accrual, valuations at the start and end of marriage matter, so keep documentation.
- Changing regime later: It’s possible via the court, but costly and not guaranteed. Better to decide beforehand.
- Costs: Drafting an ANC involves legal costs, notaries, and registration fees, but these are often small compared to the risk mitigation value.
- Consider tax and estate duty implications: The matrimonial property regime may impact asset sharing, the value of the estate, claims between spouses, etc.
Some Additional Context
- The default regime in SA remains in community of property for marriages without an ANC.
- Out-of-community with an accrual regime as “ideal” for couples where unequal earnings or asset asymmetry exists.
- Marrying out of community without accrual is commonly used in second marriages or where parties already have substantial estates and wish to keep things separate.
- Although hard to find exact national stats on how many marriages are under each regime, the legal commentary indicates growing awareness among professionals of the importance of ANCs and choosing the right regime.
Conclusion
Deciding on a marriage regime may feel less romantic than choosing rings or a venue, but it is financially practical and can spare you stress and disputes down the line. An antenuptial contract gives you the chance to choose how you handle your assets, liabilities, and property regime, rather than having the default law apply without thought.
If you are planning to get married, schedule a meeting with a notary before you tie the knot. Ask about the regimes and what each means for your asset pool, business exposures, debts, and estate planning. Make a conscious choice, draft the ANC properly, register it on time, and move into marriage with protection and peace of mind. AWD Law provides notarial services for drafting of Antenuptial Contracts for couples before they get married
Kindly be advised that AWD Law does not enter into litigation on behalf of clients. Our conveyancers specialise exclusively in the development of vacant land, property transfers, bond registrations, administration of deceased estates and notarial practice. Should you require assistance with a litigation, kindly contact The Legal Practice Council.
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