An ante-nuptial contract (ANC), sometimes known as a prenup in South Africa, is a legal agreement entered into by couples prior to marriage to stipulate how their assets, liabilities, and possessions will be managed during and upon dissolution of the marriage in the event of divorce or death.
There are three types of matrimonial property systems in South Africa:
- In Community of Property:
By default, if a couple does not sign an ante-nuptial contract prior to getting married, they are automatically married in community of property. This means that there is a joint or communal estate i.e. all assets and liabilities acquired prior to and during the marriage are shared equally between the spouses and will be divided equally between the spouses upon dissolution of the marriage.
- Out of Community of Property with Accrual:
In this system, there is no joint or communal estate and each spouse has their own separate estate i.e. assets and liabilities acquired prior to and during the marriage are separate from one another. However, upon divorce or death, the growth or accrual of assets during the marriage is divided equally between the spouses unless stated otherwise in the antenuptial contract.
- Out of Community of Property without Accrual:
This system is similar to the previous one, however, there is no sharing of the accrual of assets during the marriage upon dissolution.
To be legally valid, an ante-nuptial contract must be executed prior to the marriage ceremony by a notary public or a commissioner of oaths. Both parties must fully understand the implications of the contract, and it must be registered at the Deeds Office within three months of signing. If the couple fails to register the ANC within this timeframe, the marriage is considered to be in community of property by default.
It’s important for couples to carefully consider their financial situation and objectives before deciding on a matrimonial property system and drafting an antenuptial contract. It’s advisable for couples to consult with a legal professional when drafting an ante-nuptial contract to ensure that it meets their specific needs and circumstances and further that it complies with South African Law.
