The most important element when planning a wedding – an Antenuptial Contract

When you make the decision to get married, no one wants to think of a marriage possibly ending, be it by death or divorce, but the reality is that intending spouses must put romance aside for a bit and think about the marital regime that will govern the marriage and the consequences thereof.

The particular regime which applies to the marriage will determine how assets are divided amongst partners in the case of divorce, but will also have effect should one of the spouses pass away.

Three different regimes apply in South Africa. These regimes are provided for in the Matrimonial Property Act 88 of 1984 and are the following:

  1. A marriage in community of property;
  2. A marriage out of community of property without the accrual; and
  3. A marriage out of community of property with the accrual.

1. Marriage in community of property

This is the default regime which applies in South Africa. If the intended spouses do not execute a contract before they get married, (in terms of civil- or customary law) which determines how their assets should be dealt with, they will automatically be married in community of property.

This means that on the conclusion of the marriage, a joint estate is formed which consists of all assets and all liabilities of both parties. At dissolution of the marriage, both parties will be entitled to half of the assets and will be liable for half of the liabilities.

The fact that a joint estate comes into existence can cause various problems for the spouses, such as:

a) When one spouse passes away, the estate of the surviving spouse must be wound up together with the estate of the deceased spouse as part of the joint estate. A consequence of this is that all accounts and transactions of the surviving spouse will be frozen until the estate is finalised (which can take months if, if not years), to the detriment of the surviving spouse.

b) Spouses cannot transact independently and without permission of the other spouse.

c) Spouses are liable for half of each other’s liabilities. Even during the existence of the marriage, your spouse’s creditor’s may claim against your estate in order to settle your spouse’s debts. A significant risk in this regard is that should one spouse become insolvent and his/her estate be liquidated, the estate of the other spouse will also be liquidated, to the detriment of both spouses.

Parties can avoid these negative consequences of a marriage in community of property if they enter into an antenuptial agreement which will determine that they will be married out of community of property and with- or without the accrual.

In order for an antenuptial contract to be valid and enforceable against third parties, it must be signed and executed before a notary before the marriage is entered into. The contract must then be registered in the deeds office by the notary within 3 months from the date of signature.

2. A marriage out of community of property without the accrual

If intending spouses enter into a contract with these terms, their respective estates will remain separate at all times, before, during and after marriage. Assets and liabilities will never shared. This regime may be appropriate where parties have accumulated substantial assets before the marriage.

Spouses will enjoy complete financial independence and my transact without consent of the other spouse. Spouses will also enjoy protection against the creditors of the other spouse.

At dissolution of the marriage, by death or divorce, each spouse will merely retain his/her separate estate consisting of assets and liabilities. The parties will have no claim against each other.

3. A marriage out community with accrual

As with a marriage out of community of property, intending spouses will enjoy protection against the creditors of the other spouse and may transact independently. The major difference is that parties may share in each other’s assets.

The accrual of a party’s estate is the amount by which the net value of his/her estate at the dissolution of the marriage exceeds the net value of the estate at the commencement of the marriage. In order to determine this amount, parties must record the commencement values of their estates in the antenuptial contract.

The accrual is only given effect at dissolution of the marriage. During the marriage, each party will remain the sole owner of assets that he/she acquired before and during the marriage, and may deal freely with such assets. Only at dissolution will it be determined which party’s estate has shown the largest accrual and which party will have a claim against the other. For example, both parties state their commencement values as R0,00. At dissolution of the marriage, it is determined that the husband’s estate is worth R10 000 000,00 while that of the wife is only worth R5 000 000,00. As the wife’s estate has shown the smaller accrual, she will have a claim against the estate of her husband for 50% of the difference in the respective accruals. R10 000 000,00 less R5 000 000,00 equals R5 000 000,00, 50% of which being R2 500 000,00 being payable by the husband to the wife.

Parties may exclude specific assets or monetary value from their commencement values in the contract, but parties may not exclude any asset which they do not already own.

The following assets will be automatically excluded from the accrual and need not be specifically mentioned in the contract:
a) Donations, legacies or inheritances received;
b) Donations between the respective spouses;
c) Any amount accrued by way of damages other than damages for patrimonial loss (for example any amounts received following a medical negligence- or Road Accident Fund claim will automatically be excluded.)

An antenuptial agreement is a fully customisable document and parties may include any term as long as it is not deemed to be contra bonos mores (“against good morals”), for example, parties may agree that the accrual will apply in different percentages, such as a 30/70 split or that the accrual will only be applicable once the marriage has lasted for a certain period, but a condition stating that one party must convert to a certain religion, will be contra bonos mores and may not be included.

It is important that intending spouses meet with a notary at least 2 months before the intended marriage date. This will give the parties enough time to adequately discuss all possible options with the notary of their choice and to determine which regime will be best suited to their lifestyle, occupations and earning capacities.

For assistance in drafting your antenuptial contract, contact Danielle Geyser on 011 675 2881 or

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