An Antenuptial Contract (ANC), often referred to as a prenuptial agreement, is a formal, legally binding agreement entered into by a couple before their marriage. It determines the matrimonial property regime that will govern their marriage and shapes how their financial affairs will be handled over the course of their lives together.
In South Africa, where a couple does not enter into a valid antenuptial contract before marriage, the default matrimonial property regime is generally marriage in community of property. Under this regime, the spouses generally share a joint estate, which includes assets and liabilities subject to the rules and exceptions provided by law.
That means the decision about your matrimonial property regime can have consequences during the marriage, not only if the marriage later ends.
💡 The Primary Purpose
The primary purpose of an ANC is to allow couples to choose a matrimonial property regime other than the default system. It allows couples to decide how their respective estates will be treated during the marriage and what proprietary consequences should apply. Depending on the regime and the terms of the ANC, this can affect the ownership and administration of assets, the treatment of growth in the estates, and exposure to certain financial risks.
An ANC is therefore not simply a document for what happens if a marriage ends. It is part of planning the financial consequences of the marriage from the beginning.
The Golden Rule: Your ANC Must Be in Place Before Marriage
For an ANC to regulate the matrimonial property consequences of the marriage, it must be executed before the marriage. The timing is therefore critical, and couples should ensure that the process is completed well ahead of their planned wedding day.
- Civil Marriages: For a civil marriage, the ANC should be executed before the marriage takes place. Couples should therefore avoid leaving the process until shortly before the wedding ceremony or appointment with a marriage officer.
- Customary Marriages: Customary marriages require particular care because the legal consequences of the marriage, including the matrimonial property consequences, can depend on the circumstances and timing of the marriage. If you intend to marry according to customary law and want an ANC to regulate the matrimonial property system, obtain appropriate legal advice well before the marriage and before the relevant matrimonial property consequences arise. Read our guide on Customary Marriages & Lobola for deeper insights.
If the parties marry without an ANC and later wish to change their matrimonial property system, the law provides a court-based procedure for changing the matrimonial property system. This can involve a High Court application and specific requirements, including considerations relating to creditors and potential prejudice. This is one reason why it is important to consider the matrimonial property regime before the marriage rather than trying to change it afterwards.
Why Structuring Matters Throughout the Marriage
Many couples mistakenly believe an ANC only becomes relevant if the marriage ends in divorce. However, an ANC can have consequences throughout the marriage. The matrimonial property regime can affect how assets and liabilities are treated, how certain transactions are managed, and the financial consequences of business or personal risks.
The choice of matrimonial property regime can be particularly important where one or both spouses have businesses, significant liabilities, investments, or other financial risks. Depending on the regime and the circumstances, an ANC may provide greater separation between the spouses' estates and may affect how certain creditor risks are dealt with.
Understanding Your Options: The Core Regimes
If you are considering an ANC, the next step is to understand the different matrimonial property regimes and decide which approach best reflects your circumstances and objectives.
- Marriage in Community of Property: The statutory default where no ANC is executed. Spouses generally share a single, joint estate comprising their assets and liabilities, subject to statutory exceptions.
- Out of Community of Property with the Accrual System: Under the accrual system, the spouses generally retain separate estates during the marriage, while the accrual rules determine the sharing of growth in the estates when the marriage ends, subject to the terms of the ANC and applicable law. The declaration of commencement values and specific asset exclusions can play an important role in how accrual is calculated.
- Out of Community of Property without the Accrual System: Each spouse generally retains a separate estate, and there is no automatic sharing of the accrual of the estates when the marriage ends. The specific terms of the ANC remain important for defining how individual assets and future arrangements are handled.
At B4.iDO, we are not saying that every couple should choose an antenuptial contract. We believe couples should understand the matrimonial property regime that will apply to their marriage, consider the implications, and make an informed decision before they say "I do".
Marriage in community of property should be a choice, not a default you enter without understanding the consequences.
Understand Your Options Before You Say "I Do"
Explore the different matrimonial property regimes and, where appropriate, speak to a Notary about your circumstances and options.