A Comprehensive Guide


Marriage is a major life event, and getting married will be one of the most significant decisions of your life. The union between two people is always an exciting and emotional time enjoyed by the couple and their families. As joyous as this occasion often is, it is imperative to consider the legal implications that come with it, particularly in South Africa. However, in all the excitement, people easily overlook and forget the legal implications which go hand in hand with this union. 

It is of utmost importance to take notice of the different matrimonial property systems and their legal consequences before the wedding. The type of marital regime you would like to adopt is one of the most important legal considerations you should make before getting married. In South Africa, couples can get married in or out of the community of property.

Different Marital Regimes in South Africa

In South Africa, the Matrimonial Property Act presents three possible marital property systems that a couple intending to get married can choose from:

  1. Married in Community of Property; or
  2. Married out of Community of Property with the exclusion of the Accrual System; or
  3. Married out of Community of Property with the inclusion of the Accrual System.

These matrimonial property systems will govern how the couple's assets and debts are handled during their marriage and distributed when the marriage eventually dissolves, either by divorce or death.Do note that in South Africa, a civil marriage or civil union is, by default, a marriage in community of property. This means that people who get married are automatically married "in community of property" unless:

  • The couple agreed to and signed an Antenuptial Contract before their marriage; and
  • A Notary Public notarised the Antenuptial Contract before the marriage; and
  • Registration of the Antenuptial Contract in the Deed's Office must occur within 3 (three) months following the date of the couple's signature. 

If any one of these requirements have not been met, the couple's marital regime will automatically default to a marriage in a community of property. 

What is "In Community of Property"

When you and your spouse get married without an Antenuptial Contract, your two individual estates will merge into one joint estate. No matter how big or small your estate is, both parties will share equally in the assets of the joint estate once married.

Suppose you choose to get married in community of property. In that case, you and your spouse's assets and liabilities merge into one estate, and the parties will each be entitled to an undividable 50% share in the assets of the joint estate. However, each party will become jointly and severally responsible for 100% of the total debt of the joint estate. Therefore, if one party was indebted to a creditor and then got married in community of property, the creditor could demand repayment from the debtor and spouse and go further and attach the assets of the joint estate to enforce repayment thereof.

The fact that each party will become 100% liable for each other's debt, in addition to their debt, is why we always recommend that a couple intending to get married conclude an Antenuptial Contract. With an Antenuptial Contract in place, a creditor will only be in a position to demand repayment from the party that incurred the debt. Therefore, the debtor's spouse and assets are protected from such claims.

What is an Antenuptial Contract?

An Antenuptial Contract, also known as an ANC or Prenuptial Agreement, is a contract entered that is drawn up and concluded by a couple before they get married. The main purpose of the contract is to stipulate the terms and conditions for the exclusion of community of property between them. However, the terms and conditions may not be illegal, immoral, or contrary to public policy.  

It also determines the rights and responsibilities of each spouse in the event of insolvency or death. Each spouse usually retains their separate property and has complete freedom to deal with that property as they choose. If one spouse were to be declared insolvent, the other's property would be protected from the insolvent spouse's creditors, subject to Section 21 of the Insolvency Act.

The two options regarding Antenuptial Contracts

An Antenuptial Contract excludes community of property. This can only be achieved by entering into an Antenuptial Contract before you get married. There are two options:

  • -out of community of property with the accrual system
  • -out of community of property without the accrual system

If you conclude an Antenuptial Contract before your marriage, the accrual system will automatically apply under the Matrimonial Property Act of 1984 unless it is expressly excluded in the contract. 'Accrual' means increase. An accrual system is a form of sharing the assets that were built up during the marriage. It is the underlying philosophy of the accrual system, that each party is entitled to take out the asset value they brought into the marriage and then share what they have built up during the marriage.Under both options (with or without the accrual system), the property of one spouse cannot be sold to pay the creditors of the other spouse, even if that spouse becomes insolvent.

Copyright © 2023 Rohan Lamprecht. Disclaimer: The information in this article is of a general nature for educational purposes only, relevant to the publishing date. Any opinions expressed are solely those of the author and do not necessarily reflect the views or opinions of Grobler Malopi Inc. The content is not intended to constitute professional or legal advice, and you are encouraged to call and consult with our attorneys to discuss your specific situation before making any decisions. Grobler Malope Inc - 087 057 1790 - info@gmilaw.co.za