Getting married is a major life milestone but beyond love and celebration, marriage also has serious legal and financial implications. One of the most critical legal decisions couples must make before saying “I do” is whether to enter into an antenuptial contract. In South Africa, this decision determines how your assets are managed during the marriage and how they’re divided in the event of divorce or death.
This article breaks down the different marital property regimes, explains how antenuptial contracts work, and helps you decide whether the accrual system is right for you.
What Are the Marital Property Systems in South Africa?
South African law recognises three primary marital regimes:
- In Community of Property
- Out of Community of Property With Accrual
- Out of Community of Property Without Accrual
Your chosen system determines how assets and debts are shared between you and your spouse during the marriage and at its conclusion.
What Happens If You Don’t Sign an Antenuptial Contract?
If you do not enter into an antenuptial contract (ANC) before your wedding, your marriage automatically defaults to in community of property. This means:
- All assets and liabilities (past and future) are shared equally between both spouses.
- A joint estate is created, combining your and your spouse’s property.
- With few exceptions, what’s yours becomes shared.
While this may sound fair, it also means that your partner’s debts can impact your financial standing, and you have limited financial autonomy.
What Is an Antenuptial Contract?
An antenuptial contract is a legally binding agreement entered into before marriage that allows couples to choose to exclude the community of property and tailor how their financial affairs will be handled.
The contract must be:
- Signed before the date of marriage, and
- Registered at the Deeds Office within three months of signing.
By signing an ANC, your marriage will legally be considered one out of community of property, with the option to include or exclude the accrual system.
Accrual System: Include or Exclude?
When couples marry out of community of property, they must decide whether to apply the accrual system. This decision affects how the increase in value of each spouse’s estate during the marriage is handled.
What is Accrual?
Accrual is the net growth in each spouse’s estate during the course of the marriage. It’s designed to fairly share the wealth built up jointly during the marriage.
Marriage Out of Community of Property With Accrual
If you choose to include the accrual system, the following applies:
- Each spouse retains ownership of their separate estate during the marriage.
- At the end of the marriage (by death or divorce), the increase in value of each estate is compared.
- The spouse whose estate grew less may claim 50% of the difference in accrual.
At the start of the marriage, both parties must declare the value of their assets (called their commencement value) in the ANC. Assets such as inheritances or personal gifts can be excluded.
This system is ideal for couples who want to maintain independence but still share in wealth accumulated together.
Marriage Out of Community of Property Without Accrual
Choosing to exclude accrual results in complete financial separation:
- Each spouse keeps their own estate, before, during, and after marriage.
- There is no sharing of assets or liabilities under any circumstances.
- What you bring in and earn remains solely yours.
This system offers the highest level of asset protection and is typically chosen when one or both partners wish to retain full financial control throughout the marriage.
Key Considerations and Legal Protection
Antenuptial contracts ensure clarity, reduce future disputes, and protect both spouses’ interests. They:
- Secure assets brought into the marriage,
- Allow tailored financial planning,
- Offer protection against each other’s debts,
- Prevent lengthy litigation during divorce or estate distribution.
It’s important to remember that accrual rights only come into effect upon termination of the marriage. There is no claim for accrual during the marriage itself.
Summary: Why Antenuptial Contracts Matter
Whether you choose with or without accrual, an antenuptial contract provides legal certainty and flexibility. It defines how your assets and finances will be handled and helps avoid future complications.
In short:
- Without an ANC → You are married in community of property (shared estate).
- With an ANC and accrual → You each keep separate estates but share growth.
- With an ANC and no accrual → Full separation of property and wealth.
Before marriage, consult a qualified attorney to draft and register an ANC that reflects your financial goals and protects your future.
Contact our team for legal advice on which marital regime best suits your circumstances. We’ll guide you through the process of drafting and registering an antenuptial contract tailored to your specific needs and future goals.
