Marriage is both a personal commitment and a legal partnership. While couples naturally focus on planning their wedding and future together, it is equally important to understand how marriage will affect their property, finances and debts.
In South Africa, couples who intend to marry out of community of property generally need to enter into an antenuptial contract before the marriage. The contract records the matrimonial property system that will apply and can provide both spouses with greater certainty about their financial rights and responsibilities.
An antenuptial contract should be carefully prepared to reflect the couple’s circumstances and intentions. It is not simply a standard document to be signed shortly before the wedding.
What is an antenuptial contract?
An antenuptial contract, commonly called an ANC, is a legal agreement entered into by two people before they marry.
The contract determines that the marriage will be out of community of property and sets out whether the accrual system will apply.
The agreement is executed before a notary public and must be registered in the appropriate Deeds Registry. Because timing and formalities matter, couples should consult a notary well before the planned wedding date.
What happens without an antenuptial contract?
Where no valid antenuptial contract is concluded before a civil marriage, the marriage will generally be in community of property.
In a marriage in community of property, the spouses’ estates are combined into a single joint estate. Subject to certain legal exceptions, assets and liabilities belonging to either spouse before the marriage, as well as those acquired during the marriage, form part of the joint estate.
Both spouses have an equal interest in the joint estate. However, this arrangement can also expose the joint estate to financial risks arising from either spouse’s debts or business activities.
Certain transactions may also require the consent of both spouses.
For some couples, marriage in community of property may suit their circumstances. Others may prefer to keep their estates legally separate.
What does “out of community of property” mean?
When spouses marry out of community of property, they retain separate estates.
Each spouse generally owns and controls their own assets and is responsible for their own liabilities. There is no joint estate created simply by the marriage.
However, there are two different ways to marry out of community of property:
- Out of community of property with the accrual system
- Out of community of property without the accrual system
The financial consequences of these two systems are significantly different.
Marriage out of community of property with accrual
The accrual system allows each spouse to maintain a separate estate during the marriage while sharing in the growth of their estates when the marriage ends through death or divorce.
During the marriage:
- Each spouse owns their own assets
- Each spouse generally manages their own financial affairs
- Each spouse is usually responsible for their own debts
- There is no joint estate
When the marriage ends, the growth of the spouses’ respective estates is calculated. The spouse whose estate showed the smaller accrual may have a claim against the spouse whose estate showed the larger accrual.
The purpose is to allow spouses to share in the financial growth achieved during the marriage without combining their estates from the outset.
How is accrual calculated?
Accrual is broadly the increase in the net value of a spouse’s estate during the marriage.
The starting value of each estate is compared with its value when the marriage ends. Adjustments may be required to account for inflation and assets that are excluded from accrual.
A simplified example can help explain the principle.
Assume one spouse’s estate grows by R2 million during the marriage and the other spouse’s estate grows by R800,000.
The difference between the two accruals is R1.2 million. The spouse with the smaller accrual may generally have a claim for half of that difference, which would be R600,000.
This is only a basic illustration. The actual calculation can be affected by liabilities, excluded assets, inflation adjustments, inheritances and the wording of the antenuptial contract.
What is the commencement value?
The commencement value is the net value of a spouse’s estate at the beginning of the marriage.
This amount is important because it forms the starting point for calculating the growth of that spouse’s estate.
Couples should provide complete and accurate information about their assets and liabilities when the antenuptial contract is prepared. The commencement values should reflect the parties’ actual financial positions.
If a commencement value is recorded incorrectly, omitted or cannot later be proved, it can create uncertainty when the marriage ends.
Which assets are normally excluded from accrual?
Certain assets may be excluded from the accrual calculation by law or by the terms of the antenuptial contract.
These may include:
- Assets specifically excluded in the antenuptial contract
- Inheritances received during the marriage
- Donations received from third parties
- Certain damages awarded for personal injury
- Assets acquired from the proceeds of an excluded asset
An inheritance or donation may still be included where the person providing it directs that it must form part of the recipient’s accrual.
Couples may also agree to exclude specific existing assets, such as a property, business interest or investment. The description of an excluded asset should be clear enough to avoid future disputes.
Marriage out of community of property without accrual
Where the accrual system is expressly excluded, the spouses’ estates remain completely separate during the marriage and when the marriage ends.
Each spouse generally keeps:
- The assets they owned before the marriage
- The assets they acquired during the marriage
- The growth in their estate
- Responsibility for their own liabilities
Neither spouse automatically shares in the growth of the other spouse’s estate.
This arrangement may offer strong financial independence, but it can have serious consequences where one spouse earns less, stops working to care for children or contributes to the household in ways that do not produce assets in their own name.
Couples considering this option should understand how it could affect both partners over the long term.
With accrual or without accrual: what is the difference?
The central difference is whether the spouses share in the growth of their estates.
With accrual
Each spouse has a separate estate during the marriage, but the growth of the estates is shared according to the accrual calculation when the marriage ends.
Without accrual
Each spouse has a separate estate during and after the marriage. There is generally no automatic sharing in the growth of either estate.
The right option depends on the couple’s financial circumstances, business interests, existing assets, debts, career plans and views on financial partnership.
Why might couples choose the accrual system?
The accrual system can provide a balance between independence and fairness.
It allows spouses to manage separate estates while recognising that both may contribute to the marriage’s financial progress. Those contributions may include earning income, managing a household, supporting a spouse’s career, raising children or helping build a business.
The system may be particularly appropriate where the couple wants to share future growth while protecting assets accumulated before the marriage.
Why might couples exclude accrual?
Some couples may prefer complete financial separation.
Reasons may include:
- Both spouses have substantial independent estates
- One or both spouses own businesses carrying financial risk
- The parties have children or financial obligations from previous relationships
- They wish to preserve specific assets for separate estate-planning purposes
- Both spouses are financially independent and prefer not to share future growth
Excluding accrual should be an informed decision rather than an automatic choice.
Does an antenuptial contract protect a spouse from the other spouse’s debts?
Marriage out of community of property generally separates the spouses’ estates. This can reduce the risk that one spouse’s personal creditors will claim against assets belonging to the other spouse.
However, an antenuptial contract is not an absolute shield against every financial risk.
A spouse may still become liable where they:
- Sign surety for the other spouse
- Enter into a joint loan or credit agreement
- Become jointly liable under another contract
- Own property or a business jointly
- Participate in conduct intended to prejudice creditors
Independent legal advice is particularly important where one spouse operates a business or intends to sign guarantees.
Can an antenuptial contract be signed after the wedding?
An antenuptial contract must be concluded before the marriage.
Spouses who are already married cannot simply sign an ANC to change their matrimonial property system. A change after marriage generally requires an application to the High Court in terms of the Matrimonial Property Act.
The court must be satisfied that there are sound reasons for the proposed change, that creditors have been properly notified and that no other person will be prejudiced.
This process is more complicated and costly than concluding the correct agreement before the wedding. Couples should therefore deal with their matrimonial property arrangements early. South African law also recognises that changing an existing matrimonial property system after marriage requires a court process rather than a private agreement between the spouses.
When should couples consult a notary?
Couples should consult a notary as soon as they begin planning the legal aspects of their marriage.
Leaving the process until shortly before the wedding can create unnecessary pressure and may not allow enough time to consider:
- The difference between the available property systems
- Existing assets and liabilities
- Commencement values
- Business interests
- Assets that should be excluded
- Estate-planning implications
- The financial position of each spouse
- The wording and legal consequences of the agreement
Both parties should understand the contract before signing it.
Important questions to discuss before signing
An antenuptial contract requires honest financial discussion.
Couples should consider:
- What assets does each person currently own?
- What debts does each person have?
- Does either person own a business?
- Are there properties, investments or inheritances to protect?
- Will one spouse reduce their working hours or leave employment?
- Do either of the parties have children from a previous relationship?
- How do they intend to manage household expenses?
- Do they want to share growth accumulated during the marriage?
- How does the chosen system fit into their Wills and estate plans?
These discussions may feel formal, but they can reduce uncertainty and support clearer financial planning.
Antenuptial contracts and customary marriages
The legal consequences of customary marriages require particular care.
The Department of Justice explains that monogamous customary marriages are generally in community of property. Couples who wish to be married out of community of property must enter into an antenuptial contract before the marriage. Different requirements may apply where a person intends to enter into a further customary marriage.
Professional advice should be obtained before the marriage to ensure that the intended matrimonial property arrangement is legally effective.
Why professional advice matters
An antenuptial contract can affect property ownership, debt exposure, divorce, death, estate planning and financial security for many years.
A contract based on incomplete information or misunderstood consequences may not achieve what the couple intended.
De Wet – Van der Watt Inc. assists couples with:
- Explaining matrimonial property systems
- Drafting antenuptial contracts
- Recording commencement values
- Identifying assets for exclusion
- Executing contracts before a notary
- Arranging registration
- Coordinating matrimonial and estate planning
Planning your marriage?
De Wet – Van der Watt Inc. provides practical guidance to couples who want to understand their options and put the correct matrimonial property arrangements in place before marriage.
Learn more about our Marriage Contracts and Antenuptial Agreements practice area or contact the firm to arrange a consultation.
Disclaimer: This article provides general legal information and does not constitute legal, financial or tax advice. Every couple’s circumstances are different, and professional advice should be obtained before entering into an antenuptial contract. Legislation and legal requirements may change.