Ante-nuptial Contracts

 In terms of South African Law, people who get married are automatically married in community of property unless they entered into an Ante-nuptial Contract prior to the marriage and the Ante-nuptial Contact also had to be attested before an attorney who is a Notary, prior to the marriage.

It is therefore essential that you conclude an Ante-nuptial Contract before you get married, because although it is possible to change your marital regime after your marriage, it is a very expensive and time-consuming process.

'In community of property' means that everything each individual spouse owned and all their individual debts from before their marriage, are included in one single joint estate. In terms of South African Law, people are automatically married in community of property unless they successfully concluded an Ante-nuptial Contract prior to their marriage, and had the contract attested before an attorney who is a Notary.

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An Ante-nuptial Contract, also known as a Prenuptial Contract or Prenup, is a contract entered into by two people prior to their marriage, to stipulate the terms and conditions for the exclusion of community of property between them. The terms and conditions may not be illegal, immoral or contrary to public policy. Each spouse usually retains his or her separate property and have complete freedom to deal with that property as he or she chooses.

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There are various reasons why some people prefer to enter into an Ante-nuptial Contract in order to be married out of community of property.

The most common reasons are that:

  • They do not want to be held liable for any debts that the other spouse may have incurred prior to the marriage;

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Please take note that the Ante-nuptial Contract will have to conform to certain standards and prescriptions in order for the Registrar of Deeds to accept and register it. Although anyone with enough knowledge could probably draft an Ante-nuptial Contract, only an attorney who is a Notary may tend to the registration thereof. In order to be legal, the Ante-nuptial Contract must be signed in his presence by you and your spouse, OR by someone you both had given Power of Attorney to.

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The starting point is the fact that the parties are married ‘out of community of property’ and thus the assets are not jointly owned, nor are the parties responsible for each other’s individual debts. Each party has a completely separate estate from that of his or her spouse. Only on dissolution of the marriage, either by death or divorce, the accrual (growth) in each of the individual estates is calculated.

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