In South Africa, the matrimonial property regime that applies to your marriage can affect how your assets and liabilities are treated, how certain financial decisions are made, and what happens to the growth of your estates when the marriage ends. Understanding these consequences before you marry is an important part of making an informed decision.
An Antenuptial Contract is one way couples can choose a matrimonial property regime other than the default regime that would otherwise apply.
1. In Community of Property (The Default)
Where a couple marries without a valid antenuptial contract that excludes community of property, the marriage will generally be in community of property. Under this regime, the spouses generally share a joint estate comprising the assets and liabilities that form part of the joint estate under South African law.
Customary marriages require particular care because the matrimonial property consequences can depend on the circumstances, the applicable customary law and the timing of the marriage.
Key Characteristics
- The spouses generally have one joint estate.
- Assets and liabilities forming part of the joint estate are generally shared within that joint estate, subject to the rules and exceptions provided by law.
- The financial circumstances of either spouse can therefore have consequences for the joint estate.
- Certain transactions involving the joint estate require the other spouse's consent, with the form and nature of consent depending on the transaction.
What to Consider: Because the spouses generally share a joint estate, the financial circumstances of either spouse can have consequences for the joint estate. This can be particularly important where one spouse has significant debts, operates a business or faces financial difficulties.
Understanding these implications before marriage can help couples make an informed decision about the matrimonial property regime that will apply to them.
Out of Community of Property
Couples who want to marry out of community of property generally need to execute a valid Antenuptial Contract before the marriage. This creates a system in which the spouses generally have separate estates, subject to the terms of the ANC and applicable law.
The separation of estates can provide protection against certain claims arising from the other spouse's debts, depending on the circumstances and applicable law. There are two variations of this regime:
2. Out of Community of Property (With Accrual)
The accrual system allows spouses to retain separate estates during the marriage while providing a mechanism for sharing in the difference between the growth of their estates when the marriage ends.
The accrual is calculated according to the rules of the Matrimonial Property Act and the terms of the ANC. The commencement value of each estate and any applicable exclusions are important when determining the accrual.
Key Characteristics
- Separate estates during the marriage.
- The growth of the spouses' estates can be taken into account when the marriage ends.
- The ANC records important information about the commencement values and any agreed exclusions.
- Inheritances, legacies and donations are generally excluded from the accrual, subject to applicable law and relevant terms or conditions.
- The system can provide a balance between maintaining separate estates and sharing in estate growth.
3. Out of Community of Property (Without Accrual)
Under this regime, the accrual system is excluded in the Antenuptial Contract. Each spouse generally retains a separate estate during the marriage and there is no automatic sharing of the growth in those estates when the marriage ends.
Spouses can nevertheless jointly own assets where they choose to do so, and the terms of their ANC and applicable law remain important.
Key Characteristics
- Separate estates throughout the marriage, subject to the ANC and applicable law.
- No automatic sharing of the growth in the spouses' estates when the marriage ends.
- Each spouse generally remains responsible for their own estate and financial affairs, subject to applicable law.
- The regime may be relevant to couples who place a strong emphasis on maintaining separate estates.
There Is No One-Size-Fits-All Regime
The most appropriate matrimonial property regime depends on your circumstances, financial position, existing assets, business interests, future plans and the way you want your financial relationship to operate.
An Antenuptial Contract is not automatically right for every couple. What matters is understanding the regime that will apply to your marriage, considering its implications and making an informed decision before you say 'I do'.
At a Glance: Regime Comparison
| Legal Feature | In Community | With Accrual | Without Accrual |
|---|---|---|---|
| Separate Estates | No — generally one joint estate | Yes — generally separate estates | Yes — generally separate estates |
| ANC Required | No, where the default regime applies | Yes | Yes |
| Sharing of Estate Growth | Joint estate structure | Accrual mechanism applies | No automatic sharing of estate growth |
| Financial Separation | Limited | Greater separation of estates | Greater separation of estates |
| Business / Debt Considerations | The financial circumstances of either spouse can affect the joint estate | Separate estates may provide greater separation, subject to applicable law | Separate estates may provide greater separation, subject to applicable law |
Understand Your Options Before You Say "I Do"
Every couple's circumstances are different. Explore the available matrimonial property regimes, consider their implications and speak to a Notary where you need advice about your circumstances.
This information is provided for general educational purposes and does not constitute legal advice. Your circumstances may require individual advice from a suitably qualified legal professional or Notary.