An antenuptial contract (“ANC”) governs what will happen to your assets and liabilities when your marriage is dissolved. If you are already married without an ANC and you wish to change your matrimonial property regime, you will need to sign a postnuptial contract – for more information, please visit our section on
Post-nuptial Contracts.
South African law provides for two types of marriages, namely “In Community of Property” and “Out of Community of Property”. Your choice will determine your proprietary rights during your marriage and upon death or divorce.
In Community of Property
If you and your fiancé don’t sign an ANC before marriage, you will be deemed to be married In Community of Property. This means that all assets will automatically become
part of the joint estate upon marriage, and you will be jointly and severally liable for each other’s debts.
- Should one spouse conduct his/her financial affairs recklessly, it will adversely affect the other. For example, if one spouse is sequestrated, the other spouse will automatically be deemed to be insolvent too.
- All assets in the joint estate may be susceptible to the claims of creditors of both spouses.
- The consent of the other spouse is required for certain contracts (e.g. sureties and finance agreements).
- As joint owners of all property in the estate, both spouses will share equal rights of ownership in each other’s assets.
Out of Community of Property
Should you wish to marry Out of Community of Property, you and your fiancé will need to enter into an ANC prior to marriage.
- In terms of an ANC, you and your fiancé will agree that there shall be no community of property and no community of profit and loss during the subsistence of the marriage.
- Neither spouse will be liable for the debts or obligations of the other.
- Each spouse is entitled to retain his/her separate property with the freedom to deal with such property as he/she wishes.
- Should one spouse be sequestrated, the property of the other is protected from the insolvent’s creditors (subject to the provisions of Section 21 of the Insolvency Act).
