Questions and Answers – Antenuptial Contracts

What is an antenuptial contract?

An antenuptial contract is an agreement which is entered into between two parties who intend to get married. This contract will regulate the patrimonial (property) consequences of the marriage. This means that whatever assets or liabilities are accrued by the parties during the subsistence of the marriage will be dealt with in terms of the provisions of this contract. An antenuptial contract is registered at the deeds office and, in so doing, becomes enforceable against third parties such as banks or credit providers.

Can I enter into an antenuptial contract if I am already married?

Although it is possible to, under some circumstances, change one’s matrimonial property regime after being married, the process associated herewith is much more time consuming, costly and complex than to enter into an antenuptial contract. It must also be borne in mind that such a change of matrimonial property regime can only be done under certain circumstances. The short answer, therefore, is that it can be done, but it is not a quick and easy process.

What will happen if I get married without entering into an antenuptial agreement?

In terms of the law of the Republic of South Africa, persons who get married without an antenuptial contract will be married in community of property. This means that there is one joint estate and that both parties will be responsible for the assets and liabilities of the joint estate.

What are the possible matrimonial property regimes in South Africa?

At date of writing hereof, there are three possible matrimonial property regimes in South Africa. These are:

• a marriage in community of property;
• a marriage out of community of property excluding the accrual system; and
• a marriage out of community of property including the accrual system.

What is the best matrimonial property regime?

It is very important to bear in mind that every couple’s circumstances are unique. It is therefore very dangerous to take a one-size-fits-all approach when choosing which matrimonial property regime to utilise. All three possible matrimonial property regimes have their own advantages and drawbacks. It is for this reason that it is very important to consult with an attorney before choosing a matrimonial property regime. There is therefore no best or worst matrimonial property regime, broadly speaking. Each scenario would dictate its own best matrimonial property regime.