Before you say “I do” – Types of marriage contracts

marriage contract
22 Feb 2021

With almost one in five marriages ending up in divorce in South Africa, it is imperative to understand what marriage contract you are entering, as it will determine how your property and assets will be divided in the case of divorce or death.

One of the toughest conversations for a couple is taking the relationship forward into the commitment of marriage and the financial implications thereof.

The types of marriages vary from culture to culture, society to society and religion to religion. Civil marriages are registered in terms of the Marriage Act 25 of 1961, which provides for marriages between men and women. Then there are customary or traditional marriages in terms of the Recognition of Customary Marriages Act 120 of 1998, as well as civil union marriages in terms of the Civil Union Act 17 of 2006, passed to give legal protection to same-sex couples.

Understanding how a marriage contract works can prevent legal battles and protect your assets in the event of death or divorce. The Matrimonial Property Act 88 of 1984 governs matrimonial property regimes that can be registered in South Africa. There are three types, namely:

  • Marriage in community of property;
  • Marriage out of community of property with an antenuptial contract subject to the accrual system;
  • Marriage out of community of property with an antenuptial contract, with the exclusion of the accrual system.

Which is the best marriage contract to enter?

There are pros and cons to all the matrimonial property regimes and the different circumstances facing couples before and during this lifetime contract. Below is a brief summary of the stipulations of each regime:

Marriage in community of property       

Marriage in community of property means all assets belonging to both spouses prior to getting married and all assets that the spouses accumulate during their marriage are combined and will fall into the joint estate, excluding any items inherited. On divorce, the joint estate is divided equally. The pros are that couples will manage their assets together and, on divorce, they will be shared. The cons are that a spouse’s debts will also be shared. In addition, each spouse needs written permission from each other to enter into certain agreements, such as when buying a house.

Marriage in community of property is the default marriage agreement so if a couple does not want their assets to be shared, they need to sign an antenuptial contract, with or without the accrual system, before getting married.

Marriage out of community of property with an antenuptial contract

As stated above, where a couple wishes to be married out of community of property, they need to enter into an antenuptial contract prior to the marriage. In terms of this contract, community of property and profit and loss are excluded. This means that there is no joining of estates and each spouse has a separate estate.

An antenuptial contract must be executed before a notary public and before the conclusion of the marriage. The antenuptial contract should expressly exclude the community of property and the community of profit and loss in order for the marriage to be out of community of property. It should be registered within three months of signature at the Deeds Office.

The couple can then choose to include or exclude the accrual system in their antenuptial contract.

Marriage out of community of property with an antenuptial contract subject to the accrual system

The accrual system protects the spouse who is financially vulnerable, typically the one who will not contribute financially to the marriage. The pros of this marriage regime are that spouses are not responsible for each other’s debt; spouses do not need permission to manage assets and any assets owned before the marriage can be excluded in the marriage contract. Accrual is a way to ensure that both spouses in a marriage gain a share of the growth of the estate once the marriage comes to an end.

In terms of the Matrimonial Property Act, should a couple not expressly exclude the accrual system in their antenuptial contract, then by default the accrual system is automatically included and they will be married out of community of property with accrual.

Marriage out of community of property with an antenuptial contract with the exclusion of the accrual system

This is essentially ‘what’s mine is mine and what’s yours is yours’. This means that each spouse keeps a separate estate and whatever assets and liabilities they individually had before the marriage form part of their separate estates. Furthermore, assets and liabilities acquired by each during the marriage also fall within their separate estates. The pros are that each spouse has absolute independence of contractual capacity and each spouse’s estate is protected against claims by the other spouse’s creditors. In addition, a spouse cannot claim any assets owned by the other spouse should the marriage end. The cons would affect the spouse who may choose to stay home and care for the children and would not receive assets accumulated by the working spouse on divorce.

In conclusion

A final point to remember is that when you get married, you will be issued with a free handwritten marriage certificate by the Department of Home Affairs (BI-27). It’s best to apply for your unabridged marriage certificate from the Department of Home Affairs as soon as possible thereafter. And before you say “I do”, make sure you understand the legal consequences of your choice of matrimonial property regime.

See also:

(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.)
Kelly Barnett

Kelly Barnett is an admitted attorney, notary and conveyancer. She obtained her BA LLB degree from the University of the Witwatersrand. Kelly is currently an associate at Michelle Chavkin Attorneys... Read more about Kelly Barnett

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