F.A.Q - Antenuptial Contracts 

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.