Antenuptial Contracts

An ANC must be executed in the presence of a Notary before your wedding. The word "ante" means "before" — and the law requires it. Here is what is at stake.

In community of property

Without an ANC, your marriage is automatically in community of property. You have one joint estate, similar to a partnership, where each spouse owns a half share. Debts incurred by one spouse — even debts from before the marriage — usually bind the joint estate, and in some cases one spouse needs the other's consent (for example to buy a car or property). If one spouse is declared insolvent, so is the other, even if they had nothing to do with the debt.

Out of community of property

Under an ANC the marriage is out of community of property. Each spouse keeps a separate estate and may deal with their own assets without the other's consent. If one falls into debt, it does not necessarily affect the other.

The accrual system

A fair and reasonable system, especially for young couples. It applies automatically to a marriage out of community of property unless specifically excluded in the ANC. It takes effect only at the end of the marriage (by death or divorce): the growth in each spouse's estate since the wedding is equally shared, with the spouse who accrued less able to claim half the difference. Certain assets can be excluded — the Notary can advise.

An ANC is especially recommended if

• One or both spouses conduct, or may conduct, a business;
• One or both have a professional practice;
• One has substantially more assets than the other;
• One has incurred, or may incur, considerable debt;
• They wish to enter into contracts independently of one another.

What to do

Consult an attorney who handles ANCs as soon as possible — don't wait too long. You will need copies of your identity documents and, where the accrual system applies, the present net value of each estate. A typical ANC costs approximately R2 000.

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