ANTENUPTIAL CONTRACT / PRE-CIVIL UNION CONTRACT
In South Africa, civil marriages are solemnised in terms of the Marriages Act, 25 of 1961, or the Civil Union Act, 17 of 2006.
An Antenuptial Contract or Pre-Civil Union Contract (also commonly referred to as a ‘prenup’), primarily governs what will happen to your assets and liabilities upon dissolution of your marriage.
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.
If you and your fiancé do not sign a contract before marriage, you will be deemed to be married In Community of Property. This means that all assets and liabilities of either spouse will automatically become part of the joint estate upon marriage. The potential consequences include the following:
- Should one spouse conduct his/her financial affairs recklessly, it will adversely affect the other spouse.
- All assets in the joint estate may become susceptible to the claims of creditors of both spouses and little can be done to afford adequate protection against this.
- For certain contractual obligations, such as suretyships and finance agreements, the consent of the other spouse is required.
- As joint owners of all property in the estate, both spouses will share equal rights of ownership in each other’s assets.
Should you wish to marry Out of Community of Property, you and your fiancé will need to enter into an Antenuptial Contract or Pre-Civil Union Contract prior to marriage.
In terms of the contract, you and your fiancé would agree that there shall be no community of property and no community of profit and loss during the subsistence of the marriage.
The implications of an Antenuptial Contract or Pre-Civil Union Contract include the following:
- Neither spouse shall be liable for the debts or obligations of the other by virtue of the marriage.
- Each spouse is entitled to retain his/her separate property with the freedom to deal with such property as he/she wishes.
- Should either 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).
If you are already married in community of property and wish to change your matrimonial property regime to out of community of property, you will need to apply for a Postnuptial Contract – for more information, please visit our section on Postnuptial Contracts.
There are various reasons that spouses may choose to enter into an Antenuptial Contract or Pre-Civil Union Contract. Some of the common reasons include the following:
- To avoid being held jointly and severally liable for the debts or obligations incurred by one spouse prior to the marriage or during the marriage.
- To protect your own assets from claims brought against your spouse by creditors and other parties.
- You may own assets at the time of the marriage, which you intend to exclude from a joint estate.
- To exercise independence and freedom in financial transactions, without being required obtaining consent from your spouse.
The basis of an Antenuptial Contract is that it excludes community of property and community of profit or loss.
The Matrimonial Property Act of 1984 (the “Act”) provides two options, namely:
- with application of the accrual system; and
- without application of the accrual system.
Please note that if you and your spouse conclude an Antenuptial Contract, the accrual system will automatically apply unless it is expressly excluded.
Without Application of the Accrual System
Exclusion of the accrual system means that there will be no sharing of profit or loss by the spouses at any time.
Unless purchased jointly, all assets are owned completely separately, including those brought into the marriage and those acquired during the marriage.
Neither party shall be liable for any debt or obligation incurred by the other before or during the subsistence of their intended marriage.
As there is no sharing, neither spouse has any claim against the assets of the other upon death or divorce by virtue of the antenuptial contract.
With Application of the Accrual System
Similarly, neither party shall be liable for any debt or obligation incurred by the other before or during the subsistence of their intended marriage.
With the application of the accrual system, both spouses would retain separate estates during the subsistence of the marriage and they would not necessarily share in each other’s profits or losses during the marriage. It is only upon dissolution of the marriage, whether by death or divorce, that the parties would be entitled to an accrual claim.
The ‘accrual’ is the extent to which each spouse has increased his/her respective estate by the time of dissolution of the marriage. The accrual of the estate of each spouse is the amount by which the value of his/her estate at the dissolution of the marriage exceeds the value thereof at the date of marriage.
The estate of the spouse that shows smaller growth during the marriage has a claim against the estate of the spouse that shows larger growth, for half of the difference. The result of calculating the accrual is that the spouses would ultimately share equally in the total accrual of both parties.
|Drafting Contract and Special Power of Attorney, attending to execution thereof before Notary Public and conveyancer’s fee for attending to registration in the Deeds Registry||1,200.00|
|Postage and petties||55.00|
|Deeds Office fee||305.00|
- The above price excludes VAT and is applicable to online submissions only and does not include consultation with an attorney.
- The above amounts exclude costs for any special provisions.
- Deeds Office fees may be increased from time to time by the Registrar of Deeds and our prices are subject to change without prior notice.
The Process Explained
Complete the online form
The form needs to be completed fully and accurately in order for us to prepare your documentation. This step should take approximately 15 minutes.
Pay our fee and submit form
Once you have completed and submitted the online form, you will be directed to our payment page. We presently accept payment by EFT or direct deposit. We do not accept cheque deposits.
We prepare your documents and email it to you within 24 hours
Upon receipt of your form and payment, we will prepare your documentation and email it to you, which includes the following:
- Special Power of Attorney; and
- Antenuptial Contract
Print and sign your documents and return them to us
Should you find the documents to be in order, print and sign them. First email the documents to us to check that all is in order and thereafter deliver the original documents to our offices (together with the required supporting documentation) or send the document via registered post, overnight mail or counter-to-counter mail.
We attend to execution and registration of your contract
Upon receipt of your original signed documents, we will appear before a Notary Public on your behalf to execute your contract in terms of the Special Power of Attorney.
Following execution, you will be furnished with a notarial certificate in order to confirm to the minister, marriage officer and/or Home Affairs that you have entered into an Antenuptial Contract or Pre-Civil Union Contract.
Your contract will be lodged and registered in the Deeds Office and we will confirm registration via email.
The original registered contract will be delivered to you via registered post in due course, upon receipt thereof from the Deeds Office, which usually takes approximately 2 to 3 months.