Antenuptial Contracts

If you are married in South Africa without entering into an Ante Nuptial contract (“ANC”), you are automatically married in community of property. Many people are of the view that drawing up an ANC is preparing for divorce, however this is not the case, as an ANC also protects you and your assets if you or your spouse die.

Purpose of an ANC
An ANC is essentially a contract between spouses that provides that the parties are married out of community of property, either including or excluding the accrual system. What this means is that each spouse retains his or her separate property and has complete freedom to deal with that property as he or she chooses. The accrual system is a form of sharing of the assets that are built up during the marriage. The underlying philosophy is that each party is entitled to take out the asset value that he or she brought into the marriage, and upon dissolution of the marriage, by death or divorce, the parties share what they accumulated together during the marriage.

Having an ANC in place ensures that there is no joint estate and that you and your spouse are regarded as separate legal entities. This means that you are protected from your spouse’s creditors and vice versa. For example, if you are married in community of property, and one spouse incurs debts, you and your spouse would be jointly responsible for paying back such debts. If, however, you are married in terms of an ANC, you will be protected against such conduct of your spouse.

An inheritance, legacy or donation which accrues to a spouse during the subsistence of the marriage, as well as any other asset which was acquired by virtue of the possession or former possession of such inheritance, legacy or donation, does not form part of the accrual of an estate, except in so far as the spouses may agree otherwise in their ANC or in so far as the testator or donor may stipulate otherwise.

How to conclude an ANC
Both spouses should consult with the attorney who is drawing up the ANC, in order that both are fully aware of the consequences of the terms of the ANC. It is important to consult with someone who is neutral and who can mediate the terms of the ANC. The ANC must be signed by both parties, in the presence of a Notary Public, prior to the marriage. Furthermore, the ANC must be registered in the Deeds Office within three months of the date of the marriage. It is possible to conclude an ANC after marriage, or to alter the terms of an ANC, but this can only be done by way of application to the high court by both spouses.

Back to Home Page