Antenuptial Contracts

Under South African law, if you marry without an Antenuptial or Pre-nuptial Contract, then you are married in community of property. Marriage in community of property means that all your assets are joined together and both of you control it together. This is not altogether bad as both parties have to discuss and agree how their money is to be spent or saved and, one spouse cannot bind their joint estate as surety for a third party without the consent of the other spouse.

More sophisticated couples normally prefer to control their own goods and sign an Antenuptial Contract (before they get married of course) agreeing that they will each look after their own estate and will not be responsible for the debts or outgoings of their loved one. This is a normal contract and a precedent of one is available here. This also means that if one of the parties goes bankrupt, this does not affect the estate of the other party which stays independent.

It was found that, as is usual in most marriages, when the couple are blessed with children, one spouse’s career path (historically that of the woman) is interrupted as they take care of the young ones. This means that, if the marriage terminates through divorce (a marriage can only terminate through death or divorce and happily only 30% terminate in divorce), the one spouse has the money and the other has the children with a great need for the money; this often leads to acrimonious fights through the courts. It is also unfair that both parties work equally hard but only one is paid money while the other gets the more valuable relationships.

In 1984 the Matrimonial Property Act provided that, unless it was especially excluded, an accrual system would apply to everyone who concluded an Antenuptial Contract. The accrual system simply means that, at the termination of the marriage (divorce or death), whoever has less assets can claim enough from the other party to make sure they both have the same amount.

At the start of the marriage the parties can agree to exclude some assets or their value from the accrual; this is because that party acquired or built up their estate before they joined together as partners. Normally excluded are also any inheritance, gift from the other party and personal damages that one party suffers. A precedent of the usual contract can be found here. We choose to include all the provisions rather than refer to the Act as we don’t know where the parties will be when the marriage terminates and it would be inconvenient to get a South African law expert to explain the law in Outer Mongolia 😊.

Once the Contract is signed before a Notary it is registered by the Registrar of Deeds, microfilmed and the original returned to the parties. The Marriage Officer only needs a letter from the Notary confirming the Contract, not the contract itself, which means it can be signed a few minutes before the “I do” is spoken – although it is best to discuss and sign at least a few days before the wedding.

There are other interesting implications and possible provisions which can be discussed with your Notary. Contact our friendly team to schedule a consultation.