An antenuptial contract, also known as a ‘pre-nup’, governs what will happen to your assets and liabilities on dissolution of your marriage. If you are already married without an antenuptial contract and wish to change your matrimonial property regime, you will need to execute a post-nuptial contract – for more information, please visit our section on Post-nuptial Contracts.
South African law essentially provides for two types of marriages, “In Community of Property” and “Out of Community of Property”. Your choice will determine your proprietary rights during your marriage and upon death or divorce.
If you and your fiance don’t sign an Antenuptial Contract before marriage, you will be deemed to be married In Community of Property. This means that all assets and liabilities of either spouse will automatically become part of the joint estate upon marriage.
• Should one spouse conduct his/her financial affairs recklessly, it will adversely affect the other spouse.
• All assets in the joint estate may become susceptible to the claims of creditors of both spouses and little can be done to afford adequate protection against this.
• For certain contracts, such as sureties and finance agreements, the consent of the other spouse is required.
• As joint owners of all property in the estate, both spouses will share equal rights of ownership in each other’s assets.
Should you wish to marry Out of Community of Property, you and your fiancé will need to enter into an antenuptial contract prior to marriage.
In terms of an antenuptial contract, you and your fiancé agree that there shall be no community of property and no community of profit and loss during the subsistence of the marriage.
• Neither spouse is liable for the debts or obligations of the other.
• Each spouse is entitled to retain his/her separate property with the freedom to deal with such property as he/she wishes.
• Should either spouse be sequestrated, the property of the other is protected from the insolvent’s creditors (subject to the provisions of Section 21 of the Insolvency Act).
An explanation of the distinction between an antenuptial contract with the accrual and without the accrual is provided in the next section, namely The Contract.
