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Louwrens Koen Attorneys
Tel: 0870010733 E-Mail: info@louwrenskoen.co.za

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Getting Married? Why you should register consider an antenuptial contract.
When two persons that are about to be married enter into an Antenuptial Contract their marriage will be out of community of property.

The most common consequences of a marriage out of community of property are as follows:
  • The parties will not be held liable for the debts of a spouse that such spouse may have incurred prior to the marriage; 
  • The parties will not be held liable for the debts of a spouse that such spouse may incur during the marriage; 
  • Assets may be protected, particularly if one of the spouses has a business in his or her own name. The parties may decide to register assets such as their residential property in the name of only one spouse, being the spouse with the lowest risk profile. The assets of each spouse will also be safe in the event that the other spouse is sequestrated; 
  • One or both spouses may have assets prior to the marriage that they want to exclude from the joint estate; 
  • Spouses may enter into commercial transactions without the consent of their spouse;
  • Each spouse retains control over his or her assets, builds his or her own estate and is responsible for his or her own debts.
 
An antenuptial agreement is entered into where couples do not want to get married in community of property and is concluded before marriage. An antenuptial agreement might be especially important for someone who already has assets like a business, or family obligations like children from a previous marriage.

You must enter into an antenuptial contract before getting married. 
Here are important reasons to sign a prenuptial agreement before walking down the aisle.
  • You are Marrying Someone with Significant Debt.
  • You Wish to Protect Your Assets.
  • You Want to Ensure Financial Security for Both Parties.
  • You Want to Protect Your Business.
  • You do not want to expose your spouse to your business risk. 
Complete our Online Application Form once you have explored the different matrimonial property regimes available before getting married. We will draft an pro form contract within 24 hours of receipt with instruction how to proceed.

You and your future spouse will duly sign the Power of Attorney and Draft Antenuptial contract and return the original documents to us via courier (these courier costs will be for your account) or you can hand deliver the original documents to us.

Upon receipt of the original documentation, we will arrange for the execution thereof before a duly practicing and admitted Notary Public who will also ensure that your Antenuptial Contract is registered in the Deeds office.
Keep in mind that everyone have unique circumstances. Careful consideration should be given before deciding on the most suitable option. The laws that govern marriage and matrimonial property – the belongings of the spouses that form part of the marriage – are numerous and complex. That being said, our courts are very protective of the sanctity of marriage and the rights of the spouses. With international travel and communication becoming easier, and globalisation resulting in many cross-border relationships, questions about how marriages will operate in multinational settings from a practical and legal perspective are increasingly common.
This article explains the different types of marriages available in South Africa, and the formalities for concluding a legal marriage.
What types of marriages are there in South Africa?
In South Africa a person can get married in terms of civil law or customary law, or in terms of a culture or religion, such as Hindu or Islamic law. This is provided that they follow the provisions of the Marriage Act when getting married and comply with the same requirements for a civil marriage during their religious or cultural ceremony. Even same-sex partners can get married by concluding a civil union. There are special requirements that the spouses of each type of marriage must comply with in order to render their marriage valid, and the requirements differ from one type of marriage to the next. It is very important to speak to your religious officer or marriage officer to ensure that your marriage will satisfy all of the legal requirements for such recognition.
Which laws apply to marriages concluded in South Africa?
When speaking of civil marriages and determining how you and your partner are going to get married, the first question that needs to be asked is which legal system applies to your marriage.
In terms of the common law in South Africa, the matrimonial property regime of a marriage is determined according to the law applicable in the husband’s country of domicile at the time of the marriage, as opposed to the wife’s country of domicile.
Domicile is sometimes a difficult concept to define, but the generally accepted legal definition is “the place which a person deems to be their permanent residence; or a place to which, even if he or she were temporarily absent, they intend to return.”
Thus, if you are a South African woman marrying a man from the United Kingdom who is temporarily in South Africa and intends on returning there in the near future, the default position is that the laws of the UK will apply to your marriage. If you are both South Africans residing in this country, then the legal systems of South Africa will apply to your marriage.
What is unclear, however, and yet to be decided by our courts, is what system will apply in a same-sex civil union. In this case how is it determined who the “husband” will be? This is a very serious issue which needs to be addressed on a Constitutional level.
 The Matrimonial Property Act 88 of 1984
If after determining that your husband to be is domiciled in South Africa, then it is important for you to know that the Act that will be governing the assets of your estate going forward will be the Matrimonial Property Act 88 of 1984 (the Act). This Act will have a direct effect on your assets for the duration of your marriage, and at the possible termination, through either death or divorce. It is, therefore, important that you consider it carefully, and for this reason I have briefly set out below the main points contained in the Act with which you need to acquaint yourself.
It is important to note that the South African matrimonial property regime was significantly amended in 1984, with the advent of the Matrimonial Property Act. Prior to this date, any marriage entered into without an ante-nuptial contract, resulted in the parties being married OUT of community of property. This system was amended in 1984, with the intention of protecting the spouse who generally, during those times, gave up her career to stay at home and raise children. This amendment had the effect that Marriages entered into without an ante-nuptial contract, resulted in the parties being married IN community of property.
Options Pertaining to Marital Regimes in South Africa as According to the Act
If you are getting married to a South African as explained above, then you essentially have 2 choices as to the marital regimes applicable to your marriage. They are:
1) A marriage in community of property; or
2) A marriage out of community of property.
 If, however, you elect to be married out of community of property, which you must remember is not the default position, you require the execution of an ante-nuptial contract, in which case you have a further 2 choices:
1) Out of Community of Property with the application of the Accrual System; or
2) Out of Community of Property without the application of the Accrual System
How to decide which system is best for you
One specific system is not necessarily the best for all couples. Which system is best will depend on the individual needs and circumstances of each couple. For this reason, the various regimes and their respective advantages and disadvantages will now be dealt with.
i) Marriage In Community of Property
How does it work?
In terms of this system, both spouses share equally in the assets and liabilities that either of them own, owe or acquire before or during the marriage.
Spouses will have equal power of administration and both can act independently of the other, although there are certain exceptions. Written consent of both is, however, required for certain important transactions such as those relating to fixed property, suretyship’s and credit agreements, and informal consent of both is required for transactions such as the selling of goods of the joint household, such as furniture or jewellery. However, consent is not required for transactions relating to the trade, business or profession of the spouses.
Advantages
This system rests on the sound principle namely that marriage is a partnership and as such can be conducive to a harmonious marital relationship. It also promotes both legal and economic equality of the spouses. During the marriage and on its dissolution both partners are entitled to a half share in the joint estate and each one has equal powers of administration.
Disadvantages
The biggest disadvantage of a marriage in community of property is that insolvency of one of the spouses affects the total communal property, and thus the solvency of the other spouse. Where a risk of insolvency exists, it is therefore not a desired system. Further, the system of equal powers could, in cases where the temperament of one or both marriage partners is not collaborative, lead to conflict in the marriage.
ii) Marriage Out of Community of Property Without The Accrual System
How does it work?
In this type of system, each spouse comes into the marriage with their own assets and debts. During the marriage each spouse retains control of his or her own property, builds up his or her own estate and each is responsible for his or her own debts.
Advantages
Each spouse retains sole control for their own assets and liabilities. Consent of one spouse is not required by the other so as to allow each spouse to enter into transactions, where each spouse is free to build up his or her own estate without the fear of it being attached by virtue of the other spouses insolvency, or being made liable to a possible division upon divorce.
Disadvantages
In this system, if one spouse gives up their career to care for a the household or children, they will be severely prejudiced by not benifitting from the estate that they essentially helped to build by enabling the bread winner to build up their wealth.
This system is therefore not recommended for couples where one spouse intends giving up work or where the couple’s earning capacities are hugely disparate.
iii) Marriage Out of Community of Property With the Accrual System
How Does it Work
This system was developed by the legislature especially to ensure that some protection is still offered to those parties who elect to marry out of community of property, especially in those situations where, as referred to above, one of the parties remains at home, giving up a career to look after a household or children.
It works in much the same way as a marriage out of community of property without accrual except that upon dissolution of the marriage, either by death or divorce, the estates of the parties will be divided differently in accordance with the respective assets and financial position of the parties.
The way in which this division takes place is that upon dissolution of the marriage, by death or divorce, the difference between the respective values of the assets of each spouse obtained during the marriage – the accrual – will be shared equally between the spouses. This means that the spouse whose estate has shown a larger growth will pay to the other spouse half of the difference in their respective accruals. The accrual is determined by calculating the difference in the net starting value and the net final value of the estate of each spouse with the exclusion of inheritances, legacies and donations.
Advantages
Out of all the systems, it is generally accepted that the accrual system is a modern, equitable system and may be conducive to a harmonious marriage relationship. During the marriage the competence of the spouses to deal with their property is not limited in any way, provided that the one does not or will not seriously prejudice the right of the other to share in the accrual. It also offers protection during the existence of the marriage against, for example, insolvency of one of the spouses. Further, at the dissolution of the marriage each spouse has a right to share in the growth of the estate, even if they did not financially contribute to it.
Disadvantages
A possible disadvantage, especially in the case of a wealthy spouse, might be that he or she feels that he or she is not quite free to deal with his or her property since the other could apply to court for the immediate division of the accrual should the latter feel that the former, by entering into a specific transaction, might prejudice his or her right to share in the accrual. This may cause friction.
Another disadvantage of the accrual system is that spouses do not share in each other’s credit worthiness, which can have the result that the non-working spouse may have little credit worthiness during the subsistence of the marriage if his or her estate is small.
What steps do you follow to let a particular system apply to your marriage?
Now that you have a better understanding of the types of systems that are available to you, it is important for you to know how to go about deciding how the regime you choose to apply is to be instituted. In this regard, it is important to remind the reader that should you marry without entering into any form of ante-nuptial contract, you will automatically be married in community of property and you will only be able to amend this by applying to the High Court.
If you enter into an ante-nuptial contract but do not expressly exclude the accrual system, then this will automatically apply to your marriage. Should you wish to include the accrual system, but alter it in some way, you may do this by, for instance, including a provision that the eventual division of the accrual will not be on a 50/50 basis, but in accordance with another ratio.
It is important to note that you as spouses may include any provision that you wish to include in your ante-nuptial contract, provided that it is not contrary to the law.
Conclusion
In order to avoid any legal and practical difficulties arising from not selecting a matrimonial property regime from the outset, it is highly advisable that you contact a marriage officer, attorney or notary for more information on this topic. This should be done well in advance of getting married, to ensure that you have time to investigate and make suitable arrangements to comply with the legal requirements that apply to your intended marriage.

Depending on the co-operation of both parties the process takes from one to 5 working days to complete. Registration of the antenuptial contract in the office of Registrar of Deeds takes about 8 working days and delivery of the registered antenuptial contract takes between 1 - 3 months.
No. On receipt of the signed antenuptial contract or power of attorney our notary public will issue a certificate to hand to the marriage officer.

Our all inclusive fee for the registration of the antenuptial contract is R1450.00. There are no hidden costs.
Please contact with us via e-mail admin@louwrenskoen.co.za to discuss your specific circumstances. It is important that both parties have a clear understanding of their marital regime choices before proceeding.  
After delivery of the original antenuptial contract from the offices of the Registrar of Deeds the document can be collected from our offices. The document can also on request be couriered or sent via Postnet at an additional fee.
We can assist with any legal matter you might have. If an service is not within our legal ambit we will endeavor to refer you to appropriate professionals. Click here for a list of our services.
Keep in mind that everyone have unique circumstances. Careful consideration should be given before deciding on the most suitable option. The laws that govern marriage and matrimonial property – the belongings of the spouses that form part of the marriage – are numerous and complex. That being said, our courts are very protective of the sanctity of marriage and the rights of the spouses. With international travel and communication becoming easier, and globalisation resulting in many cross-border relationships, questions about how marriages will operate in multinational settings from a practical and legal perspective are increasingly common.
This article explains the different types of marriages available in South Africa, and the formalities for concluding a legal marriage.
What types of marriages are there in South Africa?
In South Africa a person can get married in terms of civil law or customary law, or in terms of a culture or religion, such as Hindu or Islamic law. This is provided that they follow the provisions of the Marriage Act when getting married and comply with the same requirements for a civil marriage during their religious or cultural ceremony. Even same-sex partners can get married by concluding a civil union. There are special requirements that the spouses of each type of marriage must comply with in order to render their marriage valid, and the requirements differ from one type of marriage to the next. It is very important to speak to your religious officer or marriage officer to ensure that your marriage will satisfy all of the legal requirements for such recognition.
Which laws apply to marriages concluded in South Africa?
When speaking of civil marriages and determining how you and your partner are going to get married, the first question that needs to be asked is which legal system applies to your marriage.
In terms of the common law in South Africa, the matrimonial property regime of a marriage is determined according to the law applicable in the husband’s country of domicile at the time of the marriage, as opposed to the wife’s country of domicile.
Domicile is sometimes a difficult concept to define, but the generally accepted legal definition is “the place which a person deems to be their permanent residence; or a place to which, even if he or she were temporarily absent, they intend to return.”
Thus, if you are a South African woman marrying a man from the United Kingdom who is temporarily in South Africa and intends on returning there in the near future, the default position is that the laws of the UK will apply to your marriage. If you are both South Africans residing in this country, then the legal systems of South Africa will apply to your marriage.
What is unclear, however, and yet to be decided by our courts, is what system will apply in a same-sex civil union. In this case how is it determined who the “husband” will be? This is a very serious issue which needs to be addressed on a Constitutional level.
 The Matrimonial Property Act 88 of 1984
If after determining that your husband to be is domiciled in South Africa, then it is important for you to know that the Act that will be governing the assets of your estate going forward will be the Matrimonial Property Act 88 of 1984 (the Act). This Act will have a direct effect on your assets for the duration of your marriage, and at the possible termination, through either death or divorce. It is, therefore, important that you consider it carefully, and for this reason I have briefly set out below the main points contained in the Act with which you need to acquaint yourself.
It is important to note that the South African matrimonial property regime was significantly amended in 1984, with the advent of the Matrimonial Property Act. Prior to this date, any marriage entered into without an ante-nuptial contract, resulted in the parties being married OUT of community of property. This system was amended in 1984, with the intention of protecting the spouse who generally, during those times, gave up her career to stay at home and raise children. This amendment had the effect that Marriages entered into without an ante-nuptial contract, resulted in the parties being married IN community of property.
Options Pertaining to Marital Regimes in South Africa as According to the Act
If you are getting married to a South African as explained above, then you essentially have 2 choices as to the marital regimes applicable to your marriage. They are:
1) A marriage in community of property; or
2) A marriage out of community of property.
 If, however, you elect to be married out of community of property, which you must remember is not the default position, you require the execution of an ante-nuptial contract, in which case you have a further 2 choices:
1) Out of Community of Property with the application of the Accrual System; or
2) Out of Community of Property without the application of the Accrual System
How to decide which system is best for you
One specific system is not necessarily the best for all couples. Which system is best will depend on the individual needs and circumstances of each couple. For this reason, the various regimes and their respective advantages and disadvantages will now be dealt with.
i) Marriage In Community of Property
How does it work?
In terms of this system, both spouses share equally in the assets and liabilities that either of them own, owe or acquire before or during the marriage.
Spouses will have equal power of administration and both can act independently of the other, although there are certain exceptions. Written consent of both is, however, required for certain important transactions such as those relating to fixed property, suretyship’s and credit agreements, and informal consent of both is required for transactions such as the selling of goods of the joint household, such as furniture or jewellery. However, consent is not required for transactions relating to the trade, business or profession of the spouses.
Advantages
This system rests on the sound principle namely that marriage is a partnership and as such can be conducive to a harmonious marital relationship. It also promotes both legal and economic equality of the spouses. During the marriage and on its dissolution both partners are entitled to a half share in the joint estate and each one has equal powers of administration.
Disadvantages
The biggest disadvantage of a marriage in community of property is that insolvency of one of the spouses affects the total communal property, and thus the solvency of the other spouse. Where a risk of insolvency exists, it is therefore not a desired system. Further, the system of equal powers could, in cases where the temperament of one or both marriage partners is not collaborative, lead to conflict in the marriage.
ii) Marriage Out of Community of Property Without The Accrual System
How does it work?
In this type of system, each spouse comes into the marriage with their own assets and debts. During the marriage each spouse retains control of his or her own property, builds up his or her own estate and each is responsible for his or her own debts.
Advantages
Each spouse retains sole control for their own assets and liabilities. Consent of one spouse is not required by the other so as to allow each spouse to enter into transactions, where each spouse is free to build up his or her own estate without the fear of it being attached by virtue of the other spouses insolvency, or being made liable to a possible division upon divorce.
Disadvantages
In this system, if one spouse gives up their career to care for a the household or children, they will be severely prejudiced by not benifitting from the estate that they essentially helped to build by enabling the bread winner to build up their wealth.
This system is therefore not recommended for couples where one spouse intends giving up work or where the couple’s earning capacities are hugely disparate.
iii) Marriage Out of Community of Property With the Accrual System
How Does it Work
This system was developed by the legislature especially to ensure that some protection is still offered to those parties who elect to marry out of community of property, especially in those situations where, as referred to above, one of the parties remains at home, giving up a career to look after a household or children.
It works in much the same way as a marriage out of community of property without accrual except that upon dissolution of the marriage, either by death or divorce, the estates of the parties will be divided differently in accordance with the respective assets and financial position of the parties.
The way in which this division takes place is that upon dissolution of the marriage, by death or divorce, the difference between the respective values of the assets of each spouse obtained during the marriage – the accrual – will be shared equally between the spouses. This means that the spouse whose estate has shown a larger growth will pay to the other spouse half of the difference in their respective accruals. The accrual is determined by calculating the difference in the net starting value and the net final value of the estate of each spouse with the exclusion of inheritances, legacies and donations.
Advantages
Out of all the systems, it is generally accepted that the accrual system is a modern, equitable system and may be conducive to a harmonious marriage relationship. During the marriage the competence of the spouses to deal with their property is not limited in any way, provided that the one does not or will not seriously prejudice the right of the other to share in the accrual. It also offers protection during the existence of the marriage against, for example, insolvency of one of the spouses. Further, at the dissolution of the marriage each spouse has a right to share in the growth of the estate, even if they did not financially contribute to it.
Disadvantages
A possible disadvantage, especially in the case of a wealthy spouse, might be that he or she feels that he or she is not quite free to deal with his or her property since the other could apply to court for the immediate division of the accrual should the latter feel that the former, by entering into a specific transaction, might prejudice his or her right to share in the accrual. This may cause friction.
Another disadvantage of the accrual system is that spouses do not share in each other’s credit worthiness, which can have the result that the non-working spouse may have little credit worthiness during the subsistence of the marriage if his or her estate is small.
What steps do you follow to let a particular system apply to your marriage?
Now that you have a better understanding of the types of systems that are available to you, it is important for you to know how to go about deciding how the regime you choose to apply is to be instituted. In this regard, it is important to remind the reader that should you marry without entering into any form of ante-nuptial contract, you will automatically be married in community of property and you will only be able to amend this by applying to the High Court.
If you enter into an ante-nuptial contract but do not expressly exclude the accrual system, then this will automatically apply to your marriage. Should you wish to include the accrual system, but alter it in some way, you may do this by, for instance, including a provision that the eventual division of the accrual will not be on a 50/50 basis, but in accordance with another ratio.
It is important to note that you as spouses may include any provision that you wish to include in your ante-nuptial contract, provided that it is not contrary to the law.
Conclusion
In order to avoid any legal and practical difficulties arising from not selecting a matrimonial property regime from the outset, it is highly advisable that you contact a marriage officer, attorney or notary for more information on this topic. This should be done well in advance of getting married, to ensure that you have time to investigate and make suitable arrangements to comply with the legal requirements that apply to your intended marriage.


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Louwrens Koen Attorneys
Office 4, Second Floor, Northern Pavilion, Loftus Versveld Stadium,
416 Kirkness Street, Pretoria
Tel:0870010733 E-mail admin@louwrenskoen.co.za 
Or search for Louwrens Koen Attorneys and Google Maps. 
Louwrens Koen Attorneys have assisted thousands of couples over the years to register an Antentenuptial Contract. Being a long established provider of this specialised service in South-Africa shows our commitment to our clients. We believe this commitment has resulted in our longevity and success
We will send your invoice with your pro forma antenuptial contract and detailed instructions how to proceed after receipt of you Online Antenuptial Contract. 

The prohibition against donations between spouses was repealed by the Matrimonial Property Act. Donations between spouses do not form part of the accrual, unless the parties agree otherwise in the contract  Donations set out in the antenuptial can serve as proof on the insolvency of one of the spouses that the property in question belongs to the other solvent spouse. 

This is of particular advantage to the spouses when the goods in question are attempted to be attached. Where the accrual systems is excluded in terms of the contract, the “breadwinner” spouse can out of consideration of fairness and to acknowledge the other spouse's contribution to the marriage, make donations in favor of that spouse. No donation tax is payable in respect of the value of property which is donated to the spouse of the donor under a duly registered antenuptial/postnuptial contract.  

No estate duty is payable on the value of property donated to or for the benefit of the spouse of the donor under a duly registered antenuptial/postnuptial contract.

Clauses that are regarded as contra bonis mores and which may not be included in the antenuptial contract

The parties are free to include any provision in the antenuptial contract, as long as it is not against nature, reason, morality, public policy or prohibited by law. Clauses of this nature will be null and void.  

 Clauses that are regarded as contra bonis mores and which may not be included in the antenuptial contract:

1.            An undertaking by a spouse to change religion.
2. A clause stating that marital disputes must be referred to arbitration.
3. A clause recreating the husband’s marital power.
4. A clause stating that the parties will not live together as man and wife after the marriage.
5. A clause permitting the parties to commit adultery.
6. A clause where one of the parties undertake to resign after marriage. 


Herewith some common clauses entered. 

  • Exclude Community of Property
  • Profit and Loss
  • Include or exclude the Accrual system
  • Changing Percentage of Accrual
  • Donations between Spouses
  • Insurance policies
  • Exclusion of particular assets
  • Mutual will (Pactum Successorium)
  • Creation of a Trust

Discussing the necessity of an antenuptial contract may be a difficult discussion to have with your intended spouse. Because your choice will have significant legal and financial implications it is essential for the parties to explore their options before getting married.

Getting Married? - Handy Hints to get the Antenuptial Contract discussion going 
Writer's firm promotes their antenuptial contract services at various marriage expo's every year. I have gained vast experience as to the mindset of these thousands of couples. It is clear from the expressions of many that they have not taken the time to discuss this vital subject.

It is also evident that there are misconception and antagonism about and against antenuptial contracts. As one lady eloquently stated, "We love each other!. We don't need it". It was, however, very telling when this young lady's mother came back later to collect a brochure. It is also saddening for the writer when he consults with couples married in community of property to see the devastation caused when they lose everything due to not taking the time to plan and mitigate their risks.

We understand that to the bride and groom, marriage is a loving contract between two people, as it should be, who want to spend the rest of their lives together. In the eyes of the Law and corporate business, marriage is also a contract between two people not about love, but a variety of economic rights, freedom to trade, exposure and obligations. Should you thus not elect yourself, the Law will decide on your behalf. If you care about your spouse, you, therefore, owe it to yourself and your spouse to take the time to explore your options. Agreeing beforehand on these matters will put your marriage on a more sound footing.

It's hard to talk about marriage as if it were "business," but when it comes to creating a prenuptial agreement, that's precisely the approach you should take. A prenuptial agreement isn't an exit strategy or evidence of a lack of faith in the relationship. It merely is legal protection against the future risk you may be exposed to.

Start the conversation well before getting married - Don't wait until a week before your wedding to discuss a prenuptial agreement with your intended. Explore the topic early in a relationship, if possible, before you become engaged.
Don't assume you are on the same page with your intended spouse. People have all kinds of notions about antenuptial contracts from their own experiences and subjective view. Don't assume that you and your spouse-to-be are on the same page with this topic; ask.
Use your head. Not your heart. It's tough to talk about your loving, committed relationship as if it were a business arrangement. If you and your intended can agree to be logical (rather than emotional) about preparing an antenuptial contract, you'll find it much more manageable.
Always consult your Attorney. If your spouse-to-be is hesitant in any way, suggest that he/she consult with a legal professional to explore the benefits. You may find it valuable to consult with a legal professional to understand the different kinds of issues that might be covered in an antenuptial contract. The more informed you are, the easier it will be to explain things to your intended.

Whatever your decision may be. I implore you to at least take the time to consider your options. Also, consider changing or amending your will and estate planning when getting married.

Louwrens Koen Attorneys have assisted thousands of couples with choosing the appropriate antenuptial contract. Please do not hesitate to contact us.
Louwrens Koen - Practicing Attorney, Conveyancer and Notary Public. 
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  • When you have gone through all the provided articles and frequently asked questions and still have questions. Or you have unique circumstances you wish to discuss in person with an specialist attorney. Sometimes the parties prefer to sign the agreement before the Notary Public in person. Only available if you have already registered and paid for the registration of an antenuptial contract.

Antenuptial Contract Brochure

Antenuptial Contracts Explained

Matrimonial Property Act 88 of 1984

Down Matrimonial Property Act PDF

Recognition of Customary Marriages Act

To makeprovision for the recognition of customary marriages; to specify the requirements for a valid customary marriage; to regulate the registration of customary marriages; to provide for the equal status and capacity of spouses in customary marriages; to regulate the proprietary consequences of customary marriages and the capacity of spouses of such marriages; to regulate the dissolution of customary marriages; to provide for the making of regulations; to repeal certain provisions of certain laws; and to provide for matters connected therewith.

Complete the online form as thoroughly as possible and submit. We will supply you with an pro forma antenuptial contract within 24 hours. This document can be used as a discussion document and can be changed by us to suit your needs if necessary . Once satisfied sign the contract and return to us by hand, Postnet or Courier. We will supply detailed instructions.

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Using our efficient online application form we have assisted thousands of couples. We pride ourselves in being approachable. Do not hesitate to contact us with your questions or schedule a free consultation. Louwrens Koen Attorneys


  • Louwrens Koen Attorneys 417 Kirkness Street, Sunnyside, Pretoria, South Africa

Louwrens Koen Attorneys have assisted thousands of couples to register an antenuptial contract. We pride ourselves in being very approachable. As this will affect your legal status and is therefore an very important matter do not hesitate to contact with any questions you might have.


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An antenuptial agreement is entered into where couples do not want to get married in community of property and is concluded before marriage. An antenuptial agreement might be especially important for someone who already has assets like a business, or family obligations like children from a previous marriage.
An antenuptial agreement, otherwise known as a prenuptial agreement or prenup, is a contract made between two individuals who are planning to get married. Antenuptial agreements are documents that set forth the rights of each spouse and the property division in the event of a divorce.
Antenuptial contract with accrual refers to one of three civil marriage regimes recognised under South African law. Most commonly known as “Marriage out of Community of Property subject to the Accrual System”, this system requires an antenuptial agreement to be drawn up by an attorney before the date of marriage. If the parties marry without entering into an antenuptial contract first the will be married in community of property. 
It is possible to enter into an Antenuptial Contract after marriage – this is called a Postnuptial Contract.
An antenuptial agreement is entered into where couples do not want to get married in community of property and is concluded before marriage. An antenuptial agreement might be especially important for someone who already has assets like a business, or family obligations like children from a previous marriage.

These are assets owned by either spouse, or even by the spouses jointly, that they want to ignore when calculating accrual. By excluding an asset, you prevent your spouse from obtaining any benefit from the growth on the value of that asset during the marriage.
We register an antenuptial contract for R1450 all inclusive fee. 

The contract must be entered into/ signed before the marriage, The said contract must further be executed in front of two competent witnesses and attested by a notary before the marriage, Once executed the contract must be registered in the Deeds Office within 3 months of executing the contract.
An Antenuptial contract is an agreement entered into between two parties prior to their marriage and is often referred to as a “prenuptial”. ... During the marriage each spouse will retain his or her separate property and would have complete freedom to deal with that property as he or she chooses.

How to calculate the accrual?
  1. DETERMINE THE VALUE OF THE ASSETS: Draft a list of all the assets. ...
  2. DEDUCT THE FOLLOWING FROM THE TOTAL VALUE OF THE ASSETS: The commencement value as stated in the antenuptial contract (adjusted to be in line with the weighted average of the Consumer Price Index), ...
  3. THE RESULT = “The Accrual”
No particular formalities are required for an antenuptial contract to be valid and enforceable between the parties thereto. ... Consequently any antenuptial contract, which is proved to have been entered into between the intended spouses, no matter how informally, will be valid inter partes.
Once executed the contract must be registered in the Deeds Office within 3 months of executing the contract.
Remember, it must be executed before you get married either by you and your spouse or a person having a special power of attorney. If it is not done before you get married, you would be married in community of property. The only way to change that would be to approach the High Court for consent to change it.
Pros Of Getting Married Out Of Community Of Property With Accrual:
  •  The spouses share the increase in their assets accumulated during the marriage and the economically weaker spouse will benefit.
  • The spouses do not share their assets acquired before their marriage (but only if excluded in the ANC or included in the commencement values of the parties’ estates). The accrual system appeals to people who are already wealthy at the time of marriage.
  • During the course of the marriage, each spouse manages his/her estate at will. There is no complex joint or equal administration.
  • The spouses are not liable for each other’s debts. All that they share is their net assets. Thus, if one spouse becomes insolvent, the other spouse is protected against creditors.
Cons Of Getting Married Out Of Community Of Property With Accrual:
  • The economically stronger spouse has to share the profits that he/she made during the marriage.
  • One has to enter into an ANC in order for the accrual system to apply.
  • The calculation of accrual at the end of the marriage can be a bit complex.
Pros Of Getting Married Out Of Community Of Property Without Accrual:
  • Each party will keep their individual assets and liabilities separate and can handle it however he/she likes.
  • Spouses are not liable for each other’s debts, thus if one spouse becomes insolvent creditors cannot make a claim against the solvent spouse with regards to their assets.
  • The financially and/or economically stronger spouse is not legally obligated to share his/her assets with the financially and/or economically weaker spouse. This is subject to judicial discretion and forfeiture of benefits.
Cons Of Getting Married Out Of Community Of Property Without Accrual:
  • The economically and/or financially weaker spouse does not get to share in the estate of the economically and/or financially stronger spouse even if the other party indirectly contributed.
  • An ANC has to be entered into prior to marriage which incurred additional fees.
As a result of the Civil Union Act 17 of 2006 which came into operation on 30 November 2006, partners in a civil union can also conclude and register a valid antenuptial contract.

A “civil union” is a “voluntary union of two persons who are both 18 years of age or older, which is solemnised and registered by way of either a marriage or a civil partnership, in accordance with the Act, while it lasts, to the exclusion of all.

The same practices and procedures applicable to the registration of antenuptial contracts of persons married in terms of the Marriage Act 25 of 1961 apply to the registration of antenuptial contracts of persons joined in a civil union. The legal consequences of a marriage contemplated in the Marriage Act and the provisions of the Matrimonial Property Act 88 of 1984 apply to a civil union in exactly the same manner as it is applicable to persons married in terms of the Marriage Act.
The proprietary consequences of a customary marriage (in which a spouse is not a partner in another customary marriage), concluded after commencement of the Act is regulated by the Matrimonial Property Act 88 of 1984 in the same manner as it is applicable to other marriages. Customary marriages entered into after commencement of the act (if a spouse is not a partner in any existing customary marriage), is a marriage in community of property and profit and loss, unless the parties enter into an antenuptial contract which will regulate the matrimonial property system of their marriages.
Customary marriages entered into before commencement of the Act remains subject to customary law. The spouses may nevertheless apply to the court for leave to change the matrimonial property system applicable to their marriage -
Consent and assistance by parent/ legal guardian.

If an intended spouse is still a minor, he/she must be assisted by one of his/her parents or by his legal guardian when executing the antenuptial contract Although only the consent of one of the parents or the legal guardian is required to the entering into of the antenuptial contract, both parents must consent to the contracting of the marriage.

Take note that the minor himself must sign the contract. The parent or guardian may not sign the contract on behalf of the minor. The parent or guardian will simply signify his/her assistance by co-signing the contract together with the minor.
Both parents must assist the minor if the antenuptial contract makes provision for any alienation of immovable property or a right to immovable thereto belonging to the minor. If the parent/s or the legal guardian of the minor refuses to consent to the minor entering into the antenuptial contract, the High Court as upper guardian may on application grant the necessary consent

A marriage entered into by a minor without the necessary consent is not void, but may be dissolved by the High Court on application by the parents or legal guardian of the minor. The application must be brought before the minor attains majority or within 6 weeks after the date on which the guardian became aware of the marriage.
Calculation of the accrual?
The value of each spouse’s estate at commencement of the marriage must either be disclosed in the antenuptial contract or in a separate statement. If no value is recorded, the nett commencement value will be presumed to be nil.

On dissolution of the marriage each spouse’s estate will be valued again in order to calculate the growth/accrual of each estate. The commencement values are adjusted to make provision for inflation. The following assets are however left out of account in calculation of the accrual, unless the antenuptial contract provides to the contrary:
  • Damages received for non-patrimonial  loss ;
  • Inheritances, legacies and donations received from third parties Section
  • Assets especially excluded from the accrual in the antenuptial contract -
  • Donations between the spouses -
The spouse whose estate shows a smaller increase has a claim against the spouse whose estate shows the greater increase, for half the difference between the respective accruals.
If the parties enter into an antenuptial contract, the accrual system will automatically apply to their marriage out of community of property, unless it is expressly excluded in the contract. In order to prevent any uncertainty it is advisable to nevertheless insert a clause in the contract in which it is stated that the marriage is subject to the accrual system.
If the parties do not wish for the marriage to be subject to the accrual system, a clause to this effect must be inserted accordingly.

Example
“The said intended marriage will not be subject to the provisions of Chapter I of the Matrimonial Property Act 88 of 1984 and the accrual system is hereby expressly excluded.”

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