Signing an antenuptial contract before getting married does not mean you are anticipating divorce

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Even though the current generation is more open to talking about virtually anything, there is still a tendency among people to avoid talking about certain topics irrespective of their paramount importance. Signing a prenup, which is more appropriately referred to as an antenuptial contract, might be one of the taboo topics in some of our communities as it is often seen as an anticipation for divorce even before saying “I do”.

Discussing an antenuptial contract might not be the easiest of conversations to have with a prospective spouse. However, it is important to be aware of the benefits of an antenuptial contract while you are happily married.

Before we discuss the benefits of an antenuptial contract, let’s consider the different marital regimes couples can enter.

1.In Community of Property

The first and very popular regime is a marriage in community of property. It is still a popular regime as it is quite an easy regime to enter. If you do not have an antenuptial contract you are automatically married in community of property, which is the default marriage regime in South Africa. In this case, the common law creates communal property. The parties’ two separate estates will become a joint estate.

2.Out of Community of Property

Should the parties enter into an agreement in terms whereof community of property and profit and loss are excluded, they will be married out of community of property. The Matrimonial Property Act 88 of 1984 (hereafter referred to as “the Act”) introduced the accrual system which is applicable to marriages out of community of property. However, parties have the option to marry out of community of property with or without the accrual system. The two separate estates of the parties remain two separate estates for the duration of the marriage.

What is the accrual system?

Section 3 of the Act states that if the parties have agreed to a regime subject to the accrual system, at the dissolution of the marriage (by divorce or death of one or both spouses), the spouse, whose estate’s accrual is smaller than the other spouse, acquires a claim against the other spouse or their estate for an amount equal to 50% of the difference in the accrual of both estates.

A very simplistic explanation of how the accrual system works is portrayed in an example with the following facts:

  • A marries B out of community of property with the accrual system;
  • Both parties started with a commencement value of R0;
  • At the dissolution of the marriage (divorce or death) A’s estate increased in value to R100, while B’s estate is worth R200;
  • Therefore, at the dissolution of the marriage, A has a claim against B’s estate for an amount equal to 50% of the difference (R100);
  • A can claim R50.

When the parties enter into an antenuptial contract with the accrual system, they are free to exclude any asset from the accrual system.

Additionally, section 5 of the Act determines that inheritances, legacies, and donations are excluded from accrual.

What are the effects of the different regimes?

Being married in community of property causes the two separate estates of the parties to form one joint estate. Therefore, both parties will share in the assets as well as the liabilities of the joint estate. Furthermore, spouses in community of property may need the consent, and in some cases the written consent, of the other spouse in order to execute certain actions in accordance with section 15 of the Act.

If the parties marry out of community of property, their respective estates remain separate so that if, for example, one estate becomes insolvent, the other party’s estate is not affected by it. Should the parties marry out of community of property without the accrual system, the accrual of their respective estates will not be taken into account at the dissolution of the marriage.


While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither writers of articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein.  Our material is for informational purposes.

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