Antenuptial Contract (ANCs) Lawyers

Choosing the right marriage agreement is a big decision because it affects how you handle money and property together. It’s a good idea to think about what makes the most sense for you and your future spouse, so you’re both protected no matter what happens.

The Different Types of Marriage Contracts in South Africa

In South Africa, there are rules set out in the Matrimonial Property Act of 1984 that help decide what happens to your assets (like your house, car, and savings) depending on the type of marriage agreement you choose. There are three types of marriage regimes to choose from.

In Community of Property

Marriage in community of property stands out as the most accessible and widespread marriage regime, despite its inherent flaws. Unlike the other regimes, no Antenuptial Contract is necessary for this arrangement, making it the default option in South Africa for couples who do not specify otherwise.

What it means: You and your spouse share everything you own and owe. All your money, property, and debts become one big pot that you both manage together.
If you split up: You divide everything in the pot equally, no matter who earned or spent more.

While marriage in community of property offers simplicity and shared asset ownership, couples should carefully consider its implications and seek legal advice to make informed decisions about their matrimonial regime. Understanding this arrangement is important for safeguarding both partners’ interests and navigating potential challenges that may arise during the marriage.

Out of Community of Property Without Accrual

By marrying out of community of property, the spouses choose to keep their estates separate, and whatever assets and liabilities they individually had before the date of marriage will remain part of their separate estates should they get divorced. This marriage regime requires an antenuptial contract (ANC) where community of property and profit and loss are excluded. This system gives each spouse absolute independence of contractual capacity and protects each spouse’s estate against claims by the other spouse’s creditors.

What it means: You and your spouse keep your money, property, and debts separate. What you own before and during the marriage stays yours, and the same goes for your spouse.
If you split up: You each keep what you have. There’s no splitting of assets or debts, unless you both agree to something different.

Out of Community of Property With Accrual

Marriage out of community of property with accrual is by many considered a balanced and fair approach to matrimonial property arrangements. This marriage regime requires an antenuptial contract (ANC). The term ‘accrual’ refers to the net increase in the value of a spouse’s estate since the date of marriage. Assets excluded from the accrual include inheritances, donations, and certain damages.

What it means: You start off keeping your assets and debts separate, but if you split up, you share any increase in your wealth that happened during the marriage. This doesn’t include what you had before getting married, just what you’ve gained since then.
If you split up: You calculate how much each person’s assets have grown in value during the marriage. Then, you share that growth equally.

Unless agreed otherwise in a settlement agreement, upon divorce, each spouse’s estate’s net value is determined separately, and the larger estate transfers half of the difference to the smaller estate. This ensures a fair distribution of assets accumulated during the marriage.

The Cost of an Antenuptial Contract in South Africa

Firms in South Africa charge different fees regarding ANC’s. Barnard charges an all-inclusive fee of R2950.00, which includes the consultation, attending to the drafting of the ANC, Power of Attorney, Notary Public’s signature, obtaining a Protocol Number, lodgement and registration of ANC, Deeds office handling fees and ANC registration costs.

Signing and Registering Your Antenuptial Contract (ANC):

Before you tie the knot, deciding how you’ll handle your money and property together is crucial. Here’s a straightforward guide to signing and registering your ANC:

Talk to a Lawyer First: It’s a good idea for both you and your partner to talk to a lawyer before you sign anything. A lawyer can explain the different ways to manage your money and property if you ever split up or if one of you passes away. Sometimes, it’s a good idea for each person to get their own legal advice to make sure the agreement is fair to both of you.
Signing the Contract: You, your partner, and a notary (a legal professional who makes sure your signatures are real) need to sign two copies of the ANC before your wedding day. You can also sign a special document (a Power of Attorney) that lets the lawyer sign the ANC for you if you can’t be there in person.
Registering the Contract: After signing, the ANC needs to be sent to the Deeds Office near where you live to be officially registered. This should be done within three months after the notary signs it. There’s a fee to register the document, which is the cost of making everything official.

By following these steps, you make sure that your ANC is legally binding, protecting both of you according to the agreement you’ve chosen.

Important Legal Update to ANCs

New Rights on Divorce: A big change came with a Constitutional Court decision on 10 October 2023. Before this ruling, if you were married out of community without the accrual, you couldn’t ask for a share of your spouse’s assets if you got divorced. This was different for couples married before 1 November 1984.
What Changed: The court said it wasn’t fair to treat marriages differently based on when people got married. Now, regardless of when you got married under this system, you can ask a court to order a fair split of assets during a divorce. But it’s not automatic; you need to show that you contributed in some way to the increase in your spouse’s assets.