Legal Articles

An antenuptial contract, also known as a prenuptial agreement, is a contract entered into by two people who intend to get married. This document states how their assets will be dealt with in the event of divorce or death.

According to South African law, any marriage entered into without an antenuptial contract is by default a marriage in community of property.

This means that all assets and liabilities obtained both before and after the marriage is solemnised are jointly owned and equally shared between both spouses.

Benefits of Antenuptial Contract with Accrual

Marriage outside of community of property with accrual is often considered the fairest marital contract. An antenuptial contract with accrual allows each spouse to retain ownership of their respective assets obtained before their marriage while also sharing the wealth or assets accumulated together post-marriage.

Furthermore, this system allows each partner the complete freedom to decide how they wish to manage their individual estates, without having to first consult their spouse.

Registering an Antenuptial Contract with Accrual

It’s important to note that the system of accrual does not automatically apply to all antenuptial marriages or marriages out of community of property.

Therefore, for the accrual system to apply, the antenuptial contract should specifically state that the couple intends to be married out of community of property with accrual.

The accrual system includes a calculation which is applied to the accumulated assets should the marriage end in divorce, which ultimately determines how they will be shared after the divorce.

Benefits of Marriage Out of Community of Property

• Spouses are not held liable for any amount of debt that the other spouse accumulated before or during the marriage
• The antenuptial contract is completely customisable according to the specific circumstances of each spouse
• Each spouse’s assets are protected from creditors should the other spouse go on a financially risky business venture
• Should one spouse be declared insolvent, the other spouse is protected from creditors
• Each spouse is able to retain their financial independence

Van Deventer & Van Deventer Incorporated – Attorneys and Notaries in Cape Town & Johannesburg

As notaries, we are able to consult with you and your spouse regarding the particular terms and conditions for your antenuptial contract.

We will then draft the contract according to your instructions before calling you and your spouse in to sign the contract in person.

Lastly, we will send the original, signed contract to the Deeds Registry for official registration. This must take place within 3 months of the date of your marriage.

It’s important to note that an antenuptial agreement can only be entered into prior to the solemnisation of the marriage. Attempting to enter into such a contract after already being married in community of property may be possible but will incur relevant fees.

For more information about marriage contracts, including antenuptial contracts with or without accrual, please feel free to contact our attorneys.