Saying “I DO” with legal certainty

antenuptial contract
09 Jul 2024

The importance of having an antenuptial contract drawn up is often lost when you are caught up in the magical whirlwind of planning your special day, and the excitement of starting your happily ever after fairytale.

The very last thing you are thinking is “what will happen if I get divorced”. You are not even married yet!

Marriage is of course a personal expression of love and a promise to spend forever with your person – a sharing and bonding of two lives and souls.

Marriage, however, also has legal implications in that there are laws created by the government which decide how certain aspects of your marriage will work.

An antenuptial contract is an agreement you enter into with your future spouse in terms of which you get to choose which of those legal principles will apply to your specific marriage and personal life.

Deciding whether or not to enter into an antenuptial contract can be a sensitive topic in some relationships, beliefs, or cultures. You may fear that discussing it with your spouse-to-be may create distrust and scepticism, or perhaps you are trying to preserve the family peace.

It is however of utmost importance to have these uncomfortable conversations with your partner before the start of forever. It is ultimately your choice. A choice which affects nobody other than you and your spouse. You should therefore at least schedule an appointment with a Family Law specialist before your wedding, who can explain the legal side of marriage to you, and help you make a more informed decision regarding these legal aspects.

In South Africa, there are three different ways to be married:

  1. In community of property: If you do not enter into an antenuptial contract, you will automatically be married in community of property – what’s mine is yours, and what’s yours is mine. Everything is shared equally, all gains and all losses, whether you want to share or not.
  2. Out of community of property with the inclusion of the accrual system: Everything you own prior to the marriage will remain yours, if you specifically set out what assets are in your name before you are married. Any gains made during the marriage (and not any losses) are shared when the marriage ends. What’s mine is mine, and what’s yours is yours, but we will share in what we gained together during the marriage.
  3. Out of community of property with the exclusion of the accrual system: Everything you own, be it before or after your marriage, will remain yours, even if the marriage ends. What’s mine is mine, and what’s yours is yours. Period.

An antenuptial contract will ensure that you are married out of community of property, either with or without accrual, and that you get to choose which laws apply to your marriage, instead of having the government do so for you.

Your antenuptial contract must be concluded and signed in front of a Notary Public before your wedding day. If you are getting married in terms of customary or religious law, it is best to enter into an antenuptial contract before the start of the traditional celebrations, or before lobola negotiations start.

The antenuptial contract must then be registered at the Deeds Office within three months of signature. This is usually done by the attorney who assisted you with your antenuptial contract and is not a step you would have to take yourself.

If you do not have a properly signed and registered antenuptial contract, you will be married in community of property. Be warned – your marriage as well as your matrimonial property system can, as a general rule, only be terminated when death or divorce do you part.

Lastly, be sure that the attorney you consult specialises in Family Law. This area of our law is constantly changing, so you will need an attorney who stays up to date with those changes to ensure that your rights and interests are properly protected now and in future, when it really matters. It is worth making the investment early on, rather than paying for the mistake at a later stage.

Adams & Adams has a team specialising in Family Law, including ante- and postnuptial contracts, that is available to assist with any queries that you may have. Our team can be contacted at [email protected] or [email protected].

Article sourced from Adams & Adams.

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(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)
Courtney Elson

Courtney Elson is an admitted attorney, and member of the Legal Practice Council. As an Associate in the CPL department, she practices personal injury law, third party claims, matrimonial disputes... Read more about Courtney Elson

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