Discussing an Antenuptial Contract might not be the easiest of conversations to have with a prospective spouse. However, it is important to be aware of the benefits of an Antenuptial Contract while planning your perfect wedding and live happily ever after.

There are different marital regimes available for a married couple:

1. In Community of Property

The first and very popular regime is a marriage in community of property. If you do not have an Antenuptial Contract you are automatically married in community of property, which is the default marriage regime in South Africa. The parties’ two separate estates will become a joint estate – in other words all assets’ parties have before marriage and all assets acquired during marriage will belong to both spouses jointly.

2. Out of Community of Property

Should the parties enter into an agreement in terms whereof community of property and profit and loss are excluded, they will be married out of community of property. This means that the respective estates of the parties remain two separate estates for the duration of the marriage.

There is also the option of including the accrual system which is applicable to marriages out of community of property.

What is the accrual system?

If the parties have agreed to a regime subject to the accrual system, at the dissolution of the marriage (by divorce or death of one or both spouses), the spouse, whose estate’s accrual is smaller than the other spouse, acquires a claim against the other spouse or their estate for an amount equal to 50% of the difference in the accrual of both estates. When the parties enter into an Antenuptial Contract with the accrual system, they are free to exclude any asset from the accrual system.

What are the effects of the different regimes?

Being married in community of property causes the two separate estates of the parties to form one joint estate. Therefore, both parties will share in the assets as well as the liabilities of the joint estate. Furthermore, spouses in community of property may need the consent, and in some cases the written consent, of the other spouse in order to execute certain transactions for example buying immovable property and obtaining a bond.

If the parties marry out of community of property, their respective estates remain separate for example, if one estate becomes insolvent, the other party’s estate is not affected by it.

Should the parties marry out of community of property without the accrual system, the accrual of their respective estates will not be taken into account at the dissolution of the marriage.

If you are getting married and your intention is to be married out of community of property, you should be aware that entering into an Antenuptial Contract is not a quick process. Ensure that there is adequate time for the Antenuptial Contract to be signed by you and your partner, in front of two witnesses and attested by a Notary Public before the wedding date. Thereafter the Antenuptial Contact will be registered in the Deeds Office. There are multiple requirements to be met and it is advisable that you consult with LMW Attorneys before you conclude your marriage. During the consultation phase we will explain all the possible options to conclude the most appropriate agreement. Consultation can either be an in person consultation or via Zoom/Teams/WhatsApp Video Call or telephone call. However, the actual signing of the contract will have to be in person.