What are Antenuptial Contracts and How to Register an Antenuptial Contract in South Africa

Antenuptial Contracts in South Africa

Despite the importance of planning for divorce and signing a prenup, couples often neglect to broach the subject with their partners. However, prenups or antenuptial contracts are an important matter that couples should openly discuss.     

According to the provisions of the Matrimonial Property Act No. 88 of 1984, the main types of marital property regimes that can be entered into between two parties in South Africa, are:

• In community of property 

• Out of community of property with accrual or without accrual

Antenuptial contracts form part of marriages that are out of community of property.

Antenuptial Contracts Definition

An antenuptial contract also referred to as an ANC,  prenuptial contract, marriage contract, or prenup, is a legally binding contract between a couple that is signed prior to marriage.

It is an opportunity to record the rights, duties, as well as proprietary and legal consequences of a marriage. An ANC will determine how a couple’s assets and liabilities are distributed between them in the event of divorce or death. An ANC further prevents conflict and ambiguity with regard to the division of the couple’s assets on death or divorce.  

The decision to marry in community of property or with an ANC determines who gets what in case of death or divorce.

Making the wrong decision can lead to great emotional hardship, delays and frustration. This is an important decision that needs to be carefully considered by both parties to the marriage.

The different Marital Regimes in South Africa are the following:

• Marriage In Community of Property (no Antenuptial contract).

• Marriage Out of Community of Property without Accrual (Antenuptial Contract needed).

• Marriage Out of Community of Property with Accrual (Antenuptial Contract needed).

If no ANC is entered into, the parties will automatically be married in community of property (What’s mine is ours, what’s yours is ours.)

This means that:

• All debts and assets of both parties are joined into what is called a ‘common estate’, which is owned equally by both.

• Everything earned, bought, inherited, or acquired in any way during the marriage goes into the common or joint estate.

• Money in either spouse’s bank account legally belongs to the joint estate.

• Any debts incurred by either party bind the joint estate. This can be a serious problem in the case of insolvency because no assets are protected and both parties will be deemed insolvent.

• If one party enters the marriage with significantly more assets than the other, they immediately forfeit ownership of half of everything to the other.

• When the marriage ends, the entire estate, including debt, is equally divided. Whether it ends with death or divorce, this process can be complicated and take a long time.

Marriage in community of property might be the cheapest option since you don’t have to hire a lawyer to draft an ANC, but it’s not always a good idea.

By registering an ANC this has the effect that each spouse retains ownership of his/her assets in their separate estates, instead of having one joint estate.

Prospective spouses have one of two types of Antenuptial Contracts to consider:

1. Marriage out of community of property without the accrual system.

2. Marriage out of community of property with the accrual system.

Neither of these 2 contracts takes preference over the other and the type of contract is chosen by the intended spouses depending on their specific needs and the dynamics of their relationship.

What Is an Antenuptial Contract Without Accrual 

To conclude an ANC without accrual, both parties are required to sign an antenuptial contract prior to getting married. They cannot sign an antenuptial contract after marriage. 

The ANC ensures that married partners keep their assets and liabilities. In other words, the estate of each party will not be consolidated with the other’s to form a joint estate and will remain their separate property during and after their marriage.

Important factors of an antenuptial agreement without accrual include:

• Each party has full contractual capacity. 

• Each party retains the assets and liabilities they come into the marriage with and that accrue during the marriage.

• Donations or inheritance do not form part of a joint estate and are the sole property of the intended recipient. 

• If one party is sequestrated, their partner’s estate may not be attached by creditors.  

Disadvantages of being married out of community of property without the accrual system:

• In the case of death or divorce, you are entitled only to those assets you have accrued in your name – should one of the parties estate not increase during the marriage or if one party choose to stay at home to raise children, that partner would not be entitled to the assets accumulated by the other partner.

What Is an Antenuptial Contract With Accrual

An ANC with accrual includes the same factors as an antenuptial contract without accrual, with the exception that partners share increases and decreases of each other’s estates with one another. 

The basic principle is that the spouse whose estate shows the lessor accrual or growth during the existence of the marriage gets a claim against the spouse whose estate shows the greater accrual, for half of the difference between the respective estates, accrued during the existence of the marriage.

Therefore by way of an example, if Mr A begins the marriage with R1 million and when the marriage ends has R10 million and Mrs A begins the marriage with zero and ends the marriage with zero. Mrs A will have a claim against Mr A for half of the amount by which his estate grew during the marriage. Since his estate grew by R9 million, Mrs A’s claim will be R4.5 million.

Advantages of being married out of community of property with the accrual system:

• Both parties share in the wealth accumulated during the marriage.

• If each of you owned property or assets before the marriage, they remain in your respective name.

• You each conduct your own independent financial affairs.

• If one of you goes into debt, the debt cannot be claimed from the estate of the other.

• In the case of divorce, any assets made whilst married are shared – it doesn’t matter who acquired them (each partner’s current net asset value is calculated by subtracting their liabilities from assets).

• The ANC can be tailored to suit your needs, for example, inheritances, legacies and donations, can be excluded from the accrual.

• It protects the partner with a lesser income.

Steps on How to Register Antenuptial Contracts in South Africa

The registration requirements of an antenuptial contract, part of which is stipulated in the Deeds Registry Act 47 of 1937, in Chapter 7 are as follows: 

• An antenuptial agreement must be signed before the marriage.

• It is required that the contract be attested to by a notary. 

• An antenuptial contract has to be registered with the Deeds Office within three months of it being signed.

The Deeds Office should complete the registration of the antenuptial contract within approximately two to three weeks. Thereafter the contract will get an H-number/Contract number, whereafter it will take another few weeks to months until the contract is entered into the Deeds Office’s database and the original document is returned to the notary. 

Alan Levy Attorneys: Family and Divorce Attorneys in Johannesburg 

Whether you choose to enter into your marriage with or without an antenuptial contract with your partner is a personal matter, but the decision that you ultimately make should be an informed one. For expert legal advice, it is best to consult with an attorney who will be able to help you make the best decision and guide you through the process. 

Alan Levy Attorneys offer specialist family law advice and legal assistance in line with South African legislation with a focus on, but not limited to:

• Antenuptial contracts

• Divorce

• Residence and access disputes of minor children

• Amendments to matrimonial regimes 

This article is a summary and does not constitute legal advice. For professional legal assistance for family-related matters contact Alan Levy Attorneys.