The ABC of Antenuptial Contracts

Before getting married, couples must decide how their financial relationship will be structured in law. This decision carries long-term financial and legal consequences and should be made with a clear understanding of the available options.

An antenuptial contract provides the legal framework that regulates how assets, liabilities, and financial growth will be treated during the marriage and upon its dissolution.

What Is an Antenuptial Contract?

An antenuptial contract (ANC) is a legally binding agreement concluded before marriage, which determines the matrimonial property system that will apply between spouses.

If no antenuptial contract is executed before the marriage ceremony, the default position in South African law is that the marriage will be in community of property.

Timing Is Critical

An antenuptial contract must be executed before the marriage ceremony. This is a strict legal requirement.

Failure to sign the contract prior to marriage will result in the parties being automatically married in community of property, regardless of their intentions.

Once married, changing the matrimonial property system requires a High Court application, which is both costly and time-consuming.

Understanding Your Marriage Regime Options

South African law recognises different matrimonial property systems, each with distinct legal and financial consequences:

• In Community of Property: All assets and liabilities form a joint estate.
• Out of Community without Accrual: Each spouse maintains a separate estate.
• Out of Community with Accrual: Estates remain separate during marriage, but growth is shared upon dissolution.

Drafting by a Notary Public

Antenuptial contracts are specialised legal documents that must be prepared and executed by an admitted Notary Public.

A Notary Public is an attorney who has passed an additional specialised notarial examination and has been admitted by the High Court to perform notarial functions.

This ensures that the contract is drafted with precision, complies with legal requirements, and is capable of registration at the Deeds Office.

Execution and Registration

Once the antenuptial contract has been executed before a Notary Public, it must be registered at the Deeds Office.

South African law requires registration within three (3) months of execution.

Failure to register within this period may require a High Court application, resulting in additional costs and delays.

Proper execution and registration ensure that the contract is legally valid, enforceable, and recognised in law.