An antenuptial contract is not simply another wedding document. It helps determine how spouses’ assets and debts are treated during the marriage and when the marriage ends. Choose the matrimonial-property system deliberately, with advice on your circumstances, rather than buying a document without understanding its effect.
Hugh Raichlin Attorneys assists clients with antenuptial contracts and notarial work. Abigail Sher is an attorney, conveyancer and notary. Begin the discussion early enough for both partners to understand the choices and complete the required process before the wedding.
Start with the type of marriage and the applicable law
The familiar three-way comparison is useful for many South African civil marriages, but it is not a universal answer for every marriage. A foreign connection, customary marriage, earlier marriage or other legal complication may change the analysis. Tell the attorney about those facts at the outset.
In community of property
For a marriage to which the ordinary default applies, marrying without a valid antenuptial contract generally produces a joint estate. The practical consequences include how assets, debts and certain transactions are dealt with. It should not be understood merely as a promise to share future profits.
Discuss existing debts, business activities and future borrowing. A choice made without considering those facts can affect both spouses’ financial position.
Out of community of property with accrual
Spouses retain separate estates during the marriage, while the accrual system creates a claim based on the difference in their estates’ growth when the marriage ends, subject to the applicable rules and exclusions. It is not automatic joint ownership of every asset bought during the marriage.
For antenuptial contracts within the Matrimonial Property Act’s relevant framework, accrual applies unless it is expressly excluded. Record commencement values and any intended exclusions properly. Evidence of those values may matter many years later.
Out of community of property without accrual
The parties exclude the statutory accrual-sharing mechanism and retain separate estates. That does not mean every possible claim or obligation between them disappears. Maintenance, jointly owned assets, agreements and any applicable statutory or constitutional remedies require separate consideration.
The choice should be understood in the context of both partners’ anticipated contributions, including care responsibilities and periods out of paid employment. Do not rely on a slogan that one system is always best.
Information to take to the notary
- The intended wedding date and the type of marriage.
- Existing marriages, divorce orders and relevant foreign connections.
- A sensible list of assets, debts and significant business interests.
- The ownership and value of any property that may be excluded or recorded at commencement.
- Expected changes in employment, business risk or family-care responsibilities.
- Questions each partner wants explained separately before agreeing.
Coordinate the contract with the rest of the plan
The ANC should work with wills, life cover, property ownership and business agreements. It does not automatically update beneficiary nominations, remove someone from a loan or decide how a company will operate. Keep a record of the completed document and the supporting financial information.
Execution and registration are not the same event. Obtain clear advice on the formalities and timing, especially where travel or an approaching wedding creates practical pressure. Do not backdate a document or assume an unsigned draft is sufficient.
Questions clients ask
Can we change our minds after marrying?
A change to the matrimonial-property system during marriage is not achieved by casually signing a replacement ANC. A court application and other requirements may be necessary.
Does accrual mean each asset belongs to us equally?
No. Separate ownership during the marriage and the eventual accrual calculation are different questions.
Is the cheapest standard contract enough?
Price does not tell you whether the document addresses your assets, exclusions and legal circumstances. Compare the scope of advice and the process, not only the drafting charge.
Arrange the discussion before the wedding deadline
Request an initial telephone discussion with HRA and provide the wedding date. A paid consultation can then address the proposed regime and notarial requirements where the firm can assist.
Discuss an antenuptial contract
General information only. The applicable law, formalities and effect of a particular contract require individual advice.