An Antenuptial Contract is An Essential Part of Marriage Planning in South Africa
Choosing whether or not to enter into an Antenuptial Contract (ANC) is a critical step in preparing for marriage. Contrary to popular belief, an ANC is not about planning for divorce, it’s about creating clarity, protecting both partners, and ensuring financial harmony throughout your marriage.
An ANC is a contract of protection. It protects the ones you love from the harsh ravages of modern life in the event that either you or your spouse encounter misfortune.
Community of Property - COP
When getting married in South Africa a couple will by default be married in community of property(COP). This means that there is no longer a case of what’s yours is yours, and what’s mine is mine. All assets accrued before or during the marriage become “ours”.
In the eyes of the law both parties own an equal share of all assets within the marriage. This is referred to as an undivided half share. To illustrate this point, it means that both parties would own half of their home as a whole, and that the home is not divided into who owns which rooms.
Within COP There are some contracts that each party can enter into on their own, but others like buying a home would require both spouses to agree and sign together.
A benefit of being married in COP is the commitment to the marriage and your spouse, in that both parties will share in the profits of the marriage.
Antenuptial Contracts - ANC
An ANC is an agreement that two people enter into before getting married. It sets out how their finances will work during and after the marriage. The purpose of the agreement is to protect each spouse and their individual assets. It helps safeguard those assets from outside risks, such as creditors, and it explains how assets will be divided if the marriage comes to an end. This is particularly important in the event of death, as it helps ensure clarity and peace of mind for both parties and their families.
An ANC should be a strong consideration for any couple entering into a marriage whether in the sense of Western traditions, civil unions, or African traditional marriage. Remember that by default all marriages are entered into by community of property in the eyes of the law, so if this does not suit the couple, then an ANC is strongly advised.
Civil Unions
The Civil Union Act came into effect in 2006 in South Africa. This act gave same sex couples the right to get married and enter into civil partnership.
A couple entering into a civil union has been given the same rights and status as any other marriage. The marriage regimes are also the same, meaning that the marriage is automatically in community of property unless an ANC has been signed with a notary before the marriage is finalised. We have experience with drawing up this type of ANC with the variations.
Traditional Marriages
Part of South Africa’s beauty and strength is in her diverse traditions and cultures. Traditional or customary marriages are recognised in terms of South African law as a legal marriage like any other.
Couples entering into these marriages, like others, are automatically married in community of property unless they chose otherwise. Couples would need to sign an ANC with a notary before the marriage if they choose not to be married in community of property.
Cohabitation Agreement
Protecting your Relationship and Your Rights
Many people in South Africa believe that living together for a certain period of time creates a “common law marriage,” granting legal rights similar to married spouses. This is a myth.
South African law does not recognise common law spouses.While a universal partnership is a possible legal route, it must be proven in court – often after a relationship has ended – costing time, money, and emotional energy. Things can get even more complex if a partner passes away, as there is no automatic right to inherit without a valid will.
The Solution: A Cohabitation Agreement. A cohabitation agreement is a legal contract that defines each partner’s rights and responsibilities while living together and outlines what happens if the relationship ends.
Let Dewar Attorneys Help You Plan Confidently
Our legal team are here to help you with all your antenuptial, postnuptial and cohabitation agreement needs.