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Antenuptial Agreements Explained

An antenuptial contract (also known as a marriage contract) is a legal document signed prior to entering a marriage and regulates the financial relationship between a couple. This might be especially important for someone who already has assets like a business, or family obligations like children from a previous marriage. There are three types of antenuptial contracts, which is the foundation of a married couple’s future financial and estate planning. It is the most important contract entered into by sensible couples.In terms of a marriage regime and or system, it is important to note that each marriage regime has its own advantages and disadvantages and will largely depend on the couple’s history and needs before the marriage.

In South Africa there are 3 choices:

  1. In community of property- A Marriage in a Community of Property is a type of marital regime where the spouses elect to have a joint estate, and all assets and liabilities are equally shared.
  2. Out of community of property without accrual- The couple keeps a separate estate and whatever assets and liabilities they individually had before the marriage form part of their separate estates and does not share any liabilities and assets at any stage.
  3. Out of community of property with accrual- each spouse has his/her own estate, but a redistribution is done after dissolution. In other words, what was yours before the marriage remains yours, and what you have earned during the marriage belongs to both of you.

It is important to understand which assets will automatically be excluded from the accrual in terms of our law:

  • Any inheritance, legacy or donations received during the marriage.
  • Damages, like a claim for injury, but not damages for loss of property.
  • The net value of the parties’ estates at the commencement of the marriage.
  • Assets are specifically excluded from the accrual.
You can decide to exclude, or even include an inheritance which would otherwise be excluded. This system requires an antenuptial agreement to be drawn up by an attorney before the date of marriage. This legal agreement supersedes the “In Community of Property Civil Marriage Regime” and must be registered with by the Department of Home Affairs. Send Etha an email at etha@ethasmit.co.za for your antenuptial agreement.


Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.