Antenuptial Contracts

According to South African Law, the parties who wish to become married out of community of property must enter into an antenuptial contract prior to the marriage ceremony being concluded. If they fail to do so they are automatically married in community of property. Of course, many people are unaware of this provision and should be able to satisfy the court that it should change their matrimonial property system if it was their express intention that they intended to be married out of community of property.

Marriage out of community of property, without the accrual, is comparable to the accrual system. Except that the accrual is not shared between the spouses upon marriage breakup, and each couple keeps the entirety of their respective estate.

Marriage out of community of property, with the accrual is different due to any development or rise in the value of each spouse’s separate estate throughout the marriage (referred to as the “accrual”), is divided equally between the spouses upon the dissolution of the marriage.

Antenuptial Contracts are an important matter that couples should openly discuss.

According to the provisions of the Matrimonial Property Act No. 88 of 1984, the main types of marital property regimes that can be entered into between two parties in South Africa, are:

• In community of property; or
• Out of community of property with accrual; or
• Out of Community of Property, without the accrual.

Antenuptial Contracts, with or without the accrual, form a marriages that are out of community of property.