Understanding Antenuptial Contracts in South Africa

Marriage is a significant milestone, and while the focus is often on love and celebration, it’s equally important to consider the legal and financial implications. In South Africa, couples planning to marry have the option to sign an antenuptial contract (ANC). This legal document determines how assets, liabilities, and finances will be handled during the marriage and in the event of a divorce.

An antenuptial contract, also known as a prenuptial agreement, is a legal document signed before marriage. It outlines how the couple’s assets and debts will be managed during the marriage and upon its dissolution.

Without an ANC, couples are automatically married in community of property under South African law, which means:

  • All assets and debts are shared equally.
  • Both spouses are jointly liable for debts, regardless of who incurred them.

An ANC allows couples to avoid this default marital regime and choose a system that better suits their needs.

Types of Antenuptial Contracts in South Africa

There are two main types of antenuptial contracts:

1. ANC Without Accrual

This type keeps the spouses’ estates entirely separate during the marriage.

  • What it means:
    • Each spouse retains ownership of their assets and is responsible for their debts.
    • No sharing of assets or liabilities occurs during the marriage or upon divorce.
  • When to consider it:
    • If both parties want complete financial independence.
    • If either party has significant pre-existing assets or debts they wish to protect.

2. ANC With Accrual

This option includes the accrual system, which provides for the equitable sharing of assets acquired during the marriage.

  • What it means:
    • Assets accumulated before the marriage remain separate.
    • Assets acquired during the marriage are shared equally upon divorce or death, unless specifically excluded in the ANC.
  • When to consider it:
    • If both parties wish to maintain fairness while protecting pre-marital assets.
    • If one spouse is likely to contribute non-financially to the marriage (e.g., as a homemaker).

What Are the Benefits of an Antenuptial Contract?

  1. Financial Clarity:
    An ANC provides a clear framework for managing finances, reducing potential disputes in the future.
  2. Asset Protection:
    Protect pre-marital assets, family businesses, or inheritance from being shared or affected by your spouse’s debts.
  3. Customizable Agreements:
    Couples can tailor their ANC to meet specific needs, such as excluding certain assets or defining terms for spousal support.
  4. Debt Liability:
    Avoid being held responsible for your spouse’s debts by keeping estates separate.
  5. Flexibility:
    With the accrual system, you can strike a balance between financial independence and fairness.

How Do I Register an Antenuptial Contract?

Step 1: Consult an Attorney

An ANC must be drafted by a qualified notary public. Consulting an experienced attorney ensures that the agreement complies with legal requirements and reflects your wishes.

Step 2: Sign the Agreement

Both parties must sign the ANC in the presence of the notary public before the marriage.

Step 3: Register the Contract

The ANC must be registered with the Deeds Office within three months of signing. This makes it legally binding and enforceable.

What Happens Without an Antenuptial Contract?

If you do not sign an ANC before getting married, your marriage will default to in community of property. This means:

  • Shared Assets and Debts: All assets and debts, whether acquired before or during the marriage, are jointly owned.
  • Joint Liability: Both spouses are responsible for each other’s financial obligations, which can lead to complications in cases of insolvency.
  • Limited Financial Independence: Decisions about jointly owned assets often require mutual consent.

Common Misconceptions About Antenuptial Contracts

  1. “It’s Unromantic”:
    An ANC is not a sign of mistrust but a practical step to protect both parties and avoid potential conflicts.
  2. “Only the Wealthy Need It”:
    An ANC benefits couples of all financial standings by providing clarity and security.
  3. “It’s Only About Divorce”:
    While it addresses divorce scenarios, it also governs financial arrangements during the marriage and in the event of death.

Why Choose Burger Huyser Antenuptial Contract Attorneys?

At Burger Huyser Attorneys, we specialise in family law and understand the importance of protecting your future. Our experienced team can assist you with:

  • Drafting tailored antenuptial contracts.
  • Explaining the legal and financial implications of your options.
  • Registering your ANC with the Deeds Office.

We ensure that your agreement is comprehensive, legally sound, and aligned with your unique needs. Whether you prefer complete financial independence or a balanced approach with the accrual system, consulting an experienced attorney is crucial for drafting and registering your ANC.

Contact Burger Huyser Attorneys, and book a consultation  to discuss which marriage regime will suit your needs as a married couple. To speak to one of our experienced attorneys in South Africa for immediate assistance, contact us on the numbers below:

Randburg call 061 516 6878; Roodepoort call 061 516 0091; Sandton call 064 555 3358;  Pretoria call 064 548 4838;

Centurion call 061 516 7117; Alberton call 061 515 4699; Bedfordview call 061 536 3223

DISCLAIMER: Information provided in this article does not, and is not intended to constitute legal advice. READ MORE