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.

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Why Every South African Adult Should Have a Valid Will

A Will is one of the most important legal documents a person can prepare. It allows you to record how your estate should be distributed after your death, nominate an executor and make appropriate arrangements for minor beneficiaries.

Without a valid Will, your estate will be distributed according to South Africa’s intestate-succession laws rather than according to informal promises or assumptions about what you would have wanted.

A properly drafted Will can provide clarity for your family, reduce the risk of disputes and help ensure that your estate plan reflects your personal and financial circumstances.

What is a Will?

A Will is a written legal document in which a person records how their estate should be dealt with after their death.

The person making the Will is known as the testator or testatrix. In South Africa, a person who is at least 16 years old may generally make a Will, provided that they are mentally capable of understanding the consequences of doing so at the time.

A Will may deal with matters such as:

• Who should inherit your assets
• Which person should administer your estate
• How specific assets should be distributed
• How inheritances for minor beneficiaries should be managed
• Who you would prefer to care for minor children
• Whether certain assets should be placed in a testamentary trust
• What should happen to the balance of your estate after specific gifts have been made

A Will only takes effect after death. Until then, it can generally be changed or replaced, provided that the required legal formalities are followed.

Why is having a valid Will important?

You decide who inherits your estate

A valid Will allows you to choose your beneficiaries and specify what they should receive.

You may leave particular assets to specific people, make cash bequests or divide the residue of your estate among selected beneficiaries.

Without a valid Will, the law determines who inherits. This distribution may not reflect your personal relationships, family circumstances or intentions.

You can nominate an executor

The executor is responsible for administering your deceased estate.

The executor’s duties may include:

• Reporting the estate to the Master of the High Court
• Identifying and safeguarding assets
• Establishing and settling valid debts
• Attending to tax matters
• Preparing the required estate accounts
• Transferring assets to heirs
• Distributing the remaining estate

A Will allows you to nominate a person or professional you trust to perform this role. The final appointment is made by the Master of the High Court, but a clear nomination is an important part of planning your estate.

It is also sensible to nominate an alternative executor in case your first choice is unable or unwilling to act.

You can plan for minor beneficiaries

Leaving assets directly to a minor requires careful planning.

A minor cannot independently manage an inheritance. Depending on how the Will is structured, assets intended for a child may need to be administered through a testamentary trust, paid into the Guardian’s Fund or managed through another legally appropriate arrangement.

A professionally drafted Will can specify:

• Who should act as trustee
• At what age a beneficiary should receive the inheritance
• Whether funds may be used for education, healthcare or maintenance
• How the trustee should manage and invest the assets
• What should happen if a beneficiary dies before receiving the full inheritance

Without clear instructions, the outcome may differ from what the deceased intended.

You can express your wishes concerning guardianship

A parent who is the sole guardian of a minor child can use a Will to record who they would prefer to care for the child after their death.

The child’s best interests remain central, and the appropriate authorities ultimately oversee guardianship arrangements. However, recording a carefully considered nomination can provide important guidance and reduce uncertainty for the family.

You can provide for a life partner or other chosen beneficiaries

Intestate-succession rules do not necessarily produce the result that a person expects.

A person may wish to benefit:

• A life partner
• A stepchild
• A close friend
• A charitable organisation
• A dependant who is not a legal heir
• A family member in different proportions from those prescribed by law

A valid Will allows these wishes to be recorded clearly, subject to legal obligations such as valid maintenance claims.

You can reduce uncertainty and conflict

A clear Will can help prevent confusion about who should inherit, who should administer the estate and whether particular assets were promised to someone.

It cannot prevent every dispute, but accurate drafting can reduce ambiguity and provide a reliable legal record of the testator’s intentions.

What happens when someone dies without a valid Will?

A person who dies without a valid Will is said to have died intestate.

The estate is then distributed according to the Intestate Succession Act. The beneficiaries and their shares are determined by a statutory formula based on which relatives survive the deceased.

Depending on the family structure, the estate may pass to:

• A surviving spouse
• Descendants
• Parents
• Siblings or their descendants
• More distant blood relatives

Contrary to a common misconception, an intestate estate does not automatically pass to the state simply because there is no Will. However, intestate succession may still produce consequences the deceased would not have chosen.

Dying without a valid Will may also create practical uncertainty about who should be nominated to administer the estate.

What makes a Will valid in South Africa?

A Will must comply with the formalities prescribed by the Wills Act.

The core requirements generally include:

• The Will must be in writing
• The testator must sign at the end of the Will
• The signature must be made or acknowledged in the presence of at least two competent witnesses
• The witnesses must sign in the presence of the testator and one another
• Where the Will has more than one page, the testator should sign each page
• Any special signing method must comply with the additional applicable formalities

The Department of Justice states that witnesses must generally be at least 14 years old and competent to give evidence in court.

Even a document that clearly expresses a person’s wishes can create serious difficulties if it has not been executed correctly.

Who should witness a Will?

Witness selection is important.

A beneficiary named in the Will should not sign as a witness. A person who witnesses the Will may be disqualified from receiving a benefit under it, although limited legal exceptions may sometimes apply.

The spouse of a beneficiary should also generally not act as a witness.

A person nominated as executor, or the spouse of that person, should preferably not witness the Will. Using independent witnesses reduces the risk of complications.

The witnesses do not need to know the contents of the Will. Their role is to confirm that the required signing process took place.

Why a template may not be enough

A basic template may appear convenient, but it may not account for:

• Your matrimonial property system
• Jointly owned assets
• Business or trust interests
• Minor children
• Children from previous relationships
• Foreign assets
• Maintenance obligations
• Life policies and retirement benefits
• Existing loan accounts
• Tax consequences
• The liquidity needed to settle debts
• Assets that do not pass through the deceased estate

An incorrectly drafted clause may be unclear, impossible to implement or inconsistent with another part of the Will.

Professional drafting helps ensure that the document is legally valid and that its clauses work together as an effective estate plan.

Your Will should form part of a wider estate plan

A Will deals only with assets and rights that fall within the deceased estate.

Some benefits may be governed by separate legal rules, contracts or beneficiary nominations. These may include certain retirement-fund benefits, life-insurance policies, jointly held interests or trust assets.

Your Will should therefore be considered alongside:

• Your marriage contract
• Trust deeds
• Company or shareholder agreements
• Life-insurance nominations
• Retirement-fund nominations
• Property ownership
• Business succession arrangements
• Tax and liquidity planning

Conflicting documents or outdated nominations can undermine an otherwise carefully prepared plan.

Choosing an executor

An executor should be trustworthy, organised and capable of dealing with legal and financial administration.

Before making a nomination, consider whether the person:

• Understands the responsibilities involved
• Is willing to accept the appointment
• Has sufficient administrative ability
• Can work impartially with beneficiaries
• Has access to appropriate professional assistance
• Is likely to remain available in the future

A family member may be nominated, but estate administration is often technical. The Master may also require security unless the executor qualifies for an exemption or the Will deals appropriately with the issue.

Professional assistance can help the nominated executor fulfil the legal requirements.

Keeping the original Will safe

The original signed Will is extremely important.

The Department of Justice recommends keeping it with a trustworthy person or institution and ensuring that family members or heirs know where it can be found.

The Will should be stored where it is:

• Protected from fire, water and accidental damage
• Not likely to be lost during a move
• Accessible after death
• Protected from unauthorised alteration or destruction

A digital scan is useful for recordkeeping but does not replace the importance of preserving the original signed document.

Avoid attaching other documents to the original Will with staples or making handwritten alterations after signature. Any intended change should be completed using a properly executed codicil or a replacement Will.

When should a Will be reviewed?

A Will should not be prepared once and forgotten.

It should be reviewed after significant changes such as:

• Marriage or divorce
• The birth or adoption of a child
• The death of a beneficiary or executor
• Purchasing or selling property
• Starting or selling a business
• Creating or restructuring a trust
• Receiving an inheritance
• A major change in financial circumstances
• Moving to another country
• Changes in personal relationships
• Changes in legislation or tax rules

Even where there has been no major life event, reviewing the Will periodically helps confirm that the information, nominations and distribution plan remain appropriate.

Can a Will be changed?

A person may generally change their Will while they remain legally capable of doing so.

Changes can be made by executing a codicil or preparing a completely new Will. A codicil is a separate document that amends part of an existing Will and must comply with the same signing formalities.

Where several changes are required, replacing the Will is often clearer than relying on multiple amendments.

The new document should clearly revoke earlier Wills. Previous originals and copies should then be dealt with carefully to reduce confusion about which version is current.

Handwritten changes made after the Will has been signed can create uncertainty and should be avoided.

Common mistakes when drafting a Will

Common problems include:

• Signing without two competent witnesses present
• Using a beneficiary as a witness
• Failing to sign every required page
• Keeping only an unsigned or photocopied version
• Naming assets that have already been sold
• Failing to nominate an alternative executor
• Leaving no workable arrangements for minor beneficiaries
• Using vague descriptions of beneficiaries or assets
• Creating conflicting gifts
• Failing to account for estate debts and expenses
• Forgetting to update the Will after marriage or divorce
• Attempting to give away assets that do not belong to the estate
• Making handwritten alterations without following the required formalities

These mistakes can result in delays, disputes or a court application.

Why professional Will drafting matters

A Will affects the financial security of the people and organisations you leave behind.

Professional guidance can help ensure that:

• The Will complies with South African legal formalities
• Beneficiaries are described clearly
• Minor beneficiaries are appropriately protected
• The executor nomination is practical
• Specific gifts and the residue of the estate are properly addressed
• The document is aligned with your marriage, property and business arrangements
• Potential liquidity or estate-administration problems are identified early

De Wet – Van der Watt Inc. assists individuals and families with drafting and reviewing Wills that reflect their circumstances and broader estate-planning objectives.

Is your Will up to date?

A valid, carefully drafted Will provides clarity about how your estate should be administered and distributed.

De Wet – Van der Watt Inc. can assist you with preparing a new Will or reviewing an existing Will to ensure that it remains legally compliant and aligned with your current wishes.

Learn more about our Drafting of Wills practice area or contact the firm to arrange a consultation.

Disclaimer: This article provides general information and does not constitute legal, tax or financial advice. Wills and estates differ, and advice should be obtained for your specific circumstances. Legislation and legal requirements may change.