A premarital agreement or Antenuptial Contract (commonly referred to as a prenup or prenuptial agreement), is a written contract entered into by a couple prior to marriage or a civil union. The Antenuptial Contract enables them to select and control many of the legal rights they acquire upon marrying, and also what happens when their marriage eventually ends by death or divorce.
In South Africa, a civil marriage or civil union is, by default, a marriage in community of property. In order to marry out of community of property, the parties must sign an Antenuptial Contract, which must be notarised prior to their marriage, and be registered in the Deeds Office within three months from the date of signature. When marrying out of community, the parties have a choice to marry with the application of the accrual system or without the application of the accrual system.
In the event that the parties marry without accrual, the spouses' respective estates would always remain separate and neither party will have any proprietary claim against the other by virtue of the marriage. If the parties marry with application of the accrual, their respective estates would remain separate during the subsistence of the marriage. Upon dissolution of the marriage, whether by death or divorce, the spouse with the lesser accrual would have a claim against the spouse with the larger accrual for half the difference between their accrual values.
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