An Antenuptial contract is one of the most important documents partners entering into a marriage will ever sign. In South Africa, if you are married without an Antenuptial contract (“ANC”), you are automatically married in community of property. Many people feel that drawing up an ANC is preparing for divorce, however, this is not the case, as an ANC also protects you and your assets if you or your spouse die.

What does an ANC do?

If you have an Antenuptial contract with accrual, you will be married out of community of property and including the accrual, unless the accrual system is specifically excluded. This means that each spouse retains his or her separate property and has complete freedom to deal with that property as he or she chooses. The accrual system is a form of sharing of the assets that are built up during the marriage. The underlying philosophy is that each party is entitled to take out the asset value that he or she brought into the marriage, and then they share what they have accumulated together during the marriage. 

Having an Antenuptial contract with accrual in place ensures that you and your spouse are regarded as separate legal entities and there is no joint estate. This means that you are protected from your spouse’s creditors and vice versa. So, for example, if you are married in community of property, and one of you has a gambling problem and runs up huge debts, you and your spouse would be jointly responsible for paying back such debts. If, however, you are married in terms of an Antenuptial contract with accrual, you will be protected against such conduct. An inheritance, a legacy or a donation which accrues to a spouse during the subsistence of the marriage, as well as any other asset which was acquired by virtue of the possession or former possession of such inheritance, legacy or donation, does not form part of the accrual of an estate, except in so far as the spouses may agree otherwise in their antenuptial contract or in so far as the testator or donor may stipulate otherwise.

If you have an Antenuptial contract without accrual, you will be married out of community of property without the accrual system. This means that each spouse retains his or her separate property and has complete freedom to deal with that property as he or she chooses. There is no sharing of the assets that are built up during the marriage.