Commonly Asked Antenuptial Questions About Marital Regimes In South Africa

Written by: Andrea Hiestermann

Date: 30 April 2025

Understanding The Types of Marriages and Antenuptial Contracts in SA

Choosing the right marital regime is one of the most important legal decisions a couple will make, yet it is often misunderstood or overlooked until problems arise. Whether you are planning to get married, already married, or facing divorce or estate planning considerations, understanding how different marital regimes affect your assets, liabilities, and financial rights is essential.

From the onset, it must be made known that in South Africa, the parties must enter into an antenuptial contract before their wedding for it to be valid and binding.

South African law recognises several marital regimes, each with distinct legal and financial consequences that can significantly impact both spouses during the marriage and upon divorce or death. This article addresses some of the most commonly asked questions about antenuptial contracts and marital regimes, helping you make informed decisions and avoid costly misunderstandings down the line. If you do not know the different types of marital regimes, please see our article.  

What Are The Common Questions About Being Married In Community Of Property In South Africa?

Being married in community of property has far-reaching legal and financial consequences that affect how spouses own assets, incur debt, and make financial decisions throughout the marriage. Because this marital regime applies automatically unless an antenuptial contract states otherwise, it is important to clearly understand how it operates under South African law. The following questions address some of the most common concerns couples have about marriages in community of property and how this regime impacts their rights and responsibilities:

What does ‘in community of property’ mean?

• It means that both spouses have a joint estate. All assets and liabilities acquired before and during the marriage equally belong and are shared between the spouses.

 Are inheritances or donations included in the joint estate?

• This will depend, as some inheritances, legacies, and donations given to one spouse are excluded, unless the will of the person who passed away says otherwise.

Do I have to have a joint account with my spouse?

•  No, you can have your own separate bank account.  The combining of the estate comes into existence at the date of divorce or death.

 Can I buy a car in my own name?

• No, it will need to be in both parties’ names. Sometimes there is an error, and it can be listed in one spouse’s name; however, at the date of divorce or death, it will form part of the joint estate. 

Can I sell a property or a car without the other spouse’s consent?

•   No, you will need their consent, just like you will need your spouse’s consent to buy a car or property.
•   However, if no consent is requested or received and the one spouse proceeds with the transaction, it will be considered to be ratified and binding on both spouses.

 What about the assets I purchased before we got married?

•  They will fall into the joint estate.

 Do we need an antenuptial contract to be married in community of property?

• No, you do not.

 

What Are The Common Questions About Being Married Out Of Community Of Property In South Africa?

Marriage out of community of property without the accrual system is often chosen by couples who wish to keep their financial affairs entirely separate during the marriage. While this regime offers a high level of financial independence, it also comes with specific legal consequences that are not always well understood. The questions below address common concerns about how this marital regime works in practice under South African law, including asset ownership, debt, and potential claims at divorce or death:

What does ‘out of community of property’ mean?

•   It means that each spouse has their own estate. Their assets and liabilities in their name remain theirs.

 Do we need to have an antenuptial contract to be married out of community of property?

• Yes, your priest or pastor cannot help you with this; you will need to go to an attorney before the wedding to have an ANC drafted.

 If I am married out of community of property, can we have a joint account?

•   Yes, nothing is preventing you from having a joint account. It will just make it harder to divide the estate at divorce or death, as we need to determine whose money is whose. 

Can we buy a house together?

•   Yes, you will both be co-owners of the house, and each of you will own half of the house.

 Can my spouse claim from my estate at divorce or death?

•  Sometimes they can; if one spouse is a homemaker and the other works, and the homemaker has no assets to their name, the court can intervene.

 

What Are The Common Questions About Being Married Out Of Community Of Property With Accrual In South Africa?

Marriage out of community of property with the accrual system is designed to balance financial independence during the marriage with fairness upon divorce or death. While each spouse maintains a separate estate, the growth of those estates can become shared at the end of the marriage, which often raises practical and legal questions. The following questions clarify how the accrual system operates under South African law and how it affects gifts, debt, and the division of assets:

What does ‘antenuptial contract with accrual’ mean?

•  Each spouse has their own separate estate during the marriage, but at divorce or death, the spouse with the larger estate must share part of the growth with the other spouse.
•  All existing assets excluded from the accrual are not included in the calculation of the accrual. In other words, the car and/or the value thereof you purchased before the marriage, which is listed in the antenuptial contract, will not be included in the division of the estate at death or divorce.

 Do we need to have an antenuptial contract to be married out of community of property with the accrual?

• Yes, your priest or pastor cannot help you with this; you will need to go to an attorney before the wedding to have an ANC drafted.

 My spouse gifted me a car during our marriage. Will that fall into the marital regime?

• Yes, any gifts given during the marriage will fall into the regime under that spouse’s estate.

 What about a gift given before we got married?

•   It will depend on whether you excluded the gift in your contract; if you did explicitly exclude it, then it will not form part of the accrual, but if not, then it will form part of the accrual.

 Can I exclude any future gifts or future assets I want to acquire?

•   No, you cannot exclude future assets.

 What happens if my spouse has a lot of debt?

•  Each spouse remains liable for their debt, and it will be taken into account when determining the growth of each estate before division.

 

Are You Choosing The Right Marital Regime For Your Future?

Understanding the legal and financial consequences of each marital regime is essential when planning a marriage or navigating a divorce. The right choice can protect your assets, clarify responsibilities, and prevent costly disputes down the line.

If you are unsure which marital regime best suits your circumstances or if you would like assistance with drafting or reviewing an antenuptial contract, contact Burger Huyser Attorneys today. Our experienced family law attorneys are available to provide tailored legal advice and guide you through every step with clarity and confidence.

Contact Burger Huyser Attorneys, and book a consultation.

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;  Midrand call 010 022 4082; Pretoria call 064 548 4838;

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