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Before saying "I do", couples in South Africa have an important legal choice to make, how they wish their property and finances to be treated within marriage. This is done through an antenuptial contract (ANC), a formal agreement entered into before marriage that determines the matrimonial property system that will apply between the spouses.
An ANC is not a sign of mistrust; it's a practical tool for financial clarity and protection. Without one, a marriage automatically falls under the in community of property system, meaning all assets and debts are shared equally. This can expose one spouse to the other's financial risks and liabilities.
By signing an ANC, couples can opt instead to marry out of community of property, with or without the accrual system.
- Without accrual: each spouse keeps full control of their own assets and liabilities, both during the marriage and upon divorce.
- With accrual: each spouse retains ownership of their own property, but shares in the growth (or accrual) of the other's estate during the marriage, creating a fairer balance at the end.
An antenuptial contract must be drafted and notarised by a notary public and registered in the Deeds Office before the wedding. It becomes a binding legal document that provides predictability and fairness, particularly in cases of divorce or death.
In essence, an ANC allows couples to define their financial partnership on their own terms. Whether protecting personal assets, business interests, or future inheritances, it is one of the most important legal documents a couple can sign before marriage.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
