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Family and Divorce law in South Africa - A Comprehensive Guide
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ANTENUPTIAL CONTRACTS

Antenuptial Contracts (ANC): A Guide to Safeguarding Your Assets and Marriage in South Africa

Antenuptial Contracts (ANC) Safeguard Assets and Marriages

In South Africa, the most common marital regime is "in community of property," where both spouses share joint ownership of assets and divide the marital property equally upon divorce. However, South African law also acknowledges "out of community of property" marriages, with or without accrual. In these cases, each spouse's assets before marriage remain separate and are not part of a joint estate. While an antenuptial contract (ANC) is not necessary for "in community of property" marriages, it is required for "out of community of property" unions. Understanding the importance of an antenuptial contract is crucial for couples.

Accrual in Antenuptial Contracts

There are two types of ANCs: one with complete asset separation, and the other keeping pre-marriage assets and liabilities separate but allowing growth or accrual during the marriage to be shared equally. The matrimonial regime chosen dictates whether the marriage is "with accrual" or "without accrual." In "with accrual" marriages, everything acquired after the marriage is part of the joint estate and is divided equally upon divorce, preventing wealth disparity when one spouse accumulates assets while the other cares for the family.
"Without accrual" marriages provide complete asset separation, wherein all property acquired during the marriage belongs to the individual who acquired it. This arrangement may not always be the fairest option.

Accrual Exclusions

Certain assets can be excluded from the accrual according to the Matrimonial Property Act. Exclusions are allowed in cases where dividing an asset may be financially challenging or where other arrangements, such as a family trust, may prohibit the sale of the property.

The Significance of Antenuptial Contracts (ANC) in Marriages

An ANC plays a crucial role in outlining the rules and conditions for asset division during marriage and upon divorce. For couples where both partners have businesses or high-earning professions, an ANC can be especially beneficial in protecting their assets and ensuring future endeavors are not jeopardized in case of divorce. Additionally, each spouse is protected from the other's debts upon divorce, unlike in community of property marriages where debts are equally shared. This arrangement can be advantageous when one partner is a risk-taker, shielding the other from potential consequences.

Key Elements of an ANC

An antenuptial contract is clear and straightforward, specifying:
  • The net values of each party's estate at the start of the marriage
  • Any exclusions from the accrual, as discussed previously
  • The accrual calculation for marriages with accrual
  • Other conditions that may affect the accrual, such as insolvency

ANC Example: Marriage with Accrual

The ANC is not intended to provide a detailed list of each party's property. Instead, it covers the agreed-upon contractual conditions. For a marriage out of community of property with accrual, the ANC typically includes:
  • No community of property or profit/loss between the parties
  • Application of the accrual system from the Matrimonial Property Act
  • Inclusion of the parties' net estate values at the start of the marriage
  • Noted exclusions as per the Matrimonial Property Act
  • Accrual calculation and any other relevant conditions, such as insolvency

For a marriage without accrual, the ANC is even simpler, expressly excluding the accrual system.

Strengthening Marriages with ANC's

Couples may initially avoid ANCs, believing their marriage will last forever. However, when disputes arise in the event of divorce, an ANC can help prevent conflict and costly legal proceedings. Establishing an agreement during happier times demonstrates a responsible and loving act, ensuring both parties act maturely if the relationship ends.
​
Moreover, an ANC can promote harmony within the marriage by preempting financial disputes. For example, when one spouse is more risk-averse, an ANC can provide some level of comfort, even if it cannot prevent shared consequences of risk-taking during the marriage.

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​MAURICE PHILLIPS WISENBERG
20th Floor, 2 Long  Street, Cape Town, 8001, South Africa
Telephone: +27 21 419 7115
Email: familylaw(@)mpw.co.za​


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  • Home
  • Divorce
    • The Reasons for Divorce
    • The Divorce Process in South Africa
    • Rule 41A Mediation
    • The Marital Property Regimes >
      • Marriage out of Community of Property, new case
      • Marriage in Community of Property
      • Marriage out of community without accrual >
        • Understanding Post-1984 Marriages
      • Marriage out of community with the inclusion of the accrual
      • Anti-Dissipation Interdicts Divorce
      • Universal Partnerships
      • Antenuptial Contracts
      • Register Antenuptial Contract Online
      • Changing your matrimonial regime.
      • Postnuptial Contracts
    • Division of Assets at Divorce >
      • Forfeiture of Assets in a Divorce
    • Evicting your spouse divorce
    • Retirement Funds and Divorce
    • Living Annuities
    • Hiding Assets in a Divorce
    • Trusts and Divorce >
      • Can I hide assets in Trust?
    • Divorce a Missing Spouse
    • Adultery and Suing a Third Party
    • Domicile in Divorce Cases
    • International Divorces in South Africa
    • Expat South African Divorce
    • International Jurisdiction
    • Spousal Visas
    • International Divorce Law >
      • UK Divorce Laws
    • Choosing a Divorce Attorney
    • On-line Divorce
    • Lawyer Fees and Costs
    • Important Aspects of a Divorce
    • Divorcing a Narcistic Spouse
    • Dealing with Emotions During Divorce and Separation
    • Divorce Statistics
    • Divorce Therapy and Counselling >
      • Marriage and Relationship Therapists
    • Rebuilding Your Financial Life
    • Divorce Attorney Cape Town
    • Ingredients of a successful relationship
    • What are the elements of a successful marriage?
    • Uncontested Divorce
    • Uncontested Divorce - What Happens on the Court Day?
  • Maintenance
    • Spousal maintenance
    • How to calculate Child Maintenance?
    • Maintenance Defaulters
    • What Happens if you don't pay child maintenance
    • Child Maintenance Frequently Asked Questions
    • Rule 43 Interim Maintenance Pending Divorce >
      • Can I appeal a Rule 43 Order
      • Apply for Costs in Rule 43
      • Financial Disclosure Rule 43
      • Rule 43 Maintenance
    • The Maintenance Manual
    • Grand Parents and Maintenance
    • Variation of Maintenance due to loss of employment
    • Contempt of Court Maintenance
  • Children
    • Section 28 of the Children's Act
    • Relocation and Child Abduction >
      • Frequently Asked Questions about Child Relocation
      • Child Relocation to New Zealand
    • The Hague Convention >
      • Child Participation in South African Family Law and the Hague Convention
      • International Child Custody Law South Africa
      • Hague Applications and Domestic Violence
      • Mirror Orders and the Hague Convention
      • Tips on international child custody
    • Unmarried Parents and the Law
    • Unmarried Fathers Rights
    • Parenting Plans >
      • Parenting Plan
      • Conflict and dispute-resolution mechanisms
    • The non-custodian parent and contact
    • Appointing a Guardian in a Will
    • Introducing a new partner to your child
    • Refusal of Contact
    • Suspending Parental Rights
    • The Law on Grandparents Rights over Children
    • Parental Alienation >
      • Alienating Children
      • Parental Alienation Imprisonment
      • What is the effect of Parental Alienation on children?
    • Living Arrangements
    • What effect does divorce have on children?
    • The Voice of the Child in Divorce
    • Facilitation
    • Joint decisions about your child
    • Paternity Disputes
    • The Family Advocate
    • Parenting during separartion
    • Children's Act 38 of 2005
  • Abuse
    • South Africa GBV Bail Law Changes 2021-2025 Complete Guide
    • Domestic Violence Legislation and Case Law
    • The New Domestic Violence Act 14 of 2021
    • Gender Based Violence in South Africa
    • Domestic Abuse Forms
    • Evicting a Spouse
    • Being married to a Narcissist.
    • Divorcing an Abusive Spouse
    • What is Coercive Control?
    • What is Emotional Abuse
    • What is Sexual Abuse
    • What is Financial Abuse >
      • Economic Abuse
    • What is Stalking
    • What is Verbal Abuse
    • What is Spiritual Abuse
    • What is Social Abuse
    • Revenge Porn
    • Interdict Intimate photos
    • Steps to obtain a Protection Order
    • Domestic Violence eBook
    • The Protection Order
    • Who Qualifies for a Protection Order
    • Breaching a Protection Order
    • Questions on Domestic Abuse
    • Signs of an Abusive Relationship
    • Domestic Violence Information
    • Harassment >
      • Harassment Forms
  • Cohabitation
    • Universal Partnerships in South African Cohabitation
    • Maintenance and Cohabitation
    • Interim Maintenance and Cohabitation
    • Sample Cohabitation Agreement
    • Engagement and the law
  • Formalities for marriage in south africa
    • South Africa's New Marriage Bill: A Step Towards Equality and Inclusion
    • Same Sex
  • Family Law eBooks
  • Family Law Links
    • The South African Court System
    • Court Rolls
    • Family Law Legislation
    • Family Law Blog
    • New Family Law Cases
    • Register for the Online Family Law Course
  • About the Author
  • Contact
  • Charities