Marriage Contracts

Marriage Contracts in South Africa – Explained!

Marriage Contracts

Although a marriage may easily be classified as a contract, it is rather a legal act sui generis, which plainly means “a unique legal act” with its own set of regulations and requirements.

It is an important social institution that lays the foundation for the formation of families and the community, the ends of which cannot merely be expressed in rights and duties. The patrimonial and/or other consequences of a marriage is however regulated by a contract.

In South Africa, there are three types of matrimonial property regimes and/or contracts i.e.:

✅ Marriage in community of property: a tacit contract automatically entered into between the parties upon failure or omission to conclude an antenuptial or a postnuptial contract;

✅ Marriage out of community of property with the inclusion of the accrual system: a written contract entered into between the parties before the wedding day or within 3 months after its conclusion, called an antenuptial contract; and

✅ Marriage out of community of property with the exclusion of the accrual system: a written contract entered into between the parties before the wedding day or within 3 months after its conclusion, called an antenuptial contract.

The consequences of a marriage in community of property is ex lege, meaning “by operation of law”, be it in terms of the Marriage Act, No. 25 of 1961, the Civil Union Act, No. 17 of 2006, the Recognition of Customary Marriages Act, No. 120 of 1998 or the common law.

The consequences of a marriage out community of property is regulated by the antenuptial or postnuptial contract which give the parties absolute freedom to customize their rights and obligations in relation to each other and their assets, as long as it is legal, moral and possible.

The antenuptial or postnuptial contract thus supersede some of the default marital laws that would otherwise apply in the event of divorce i.e., laws that govern the division of property, retirement benefits and savings, spousal maintenance etc.

With an antenuptial or postnuptial contract, the options are endless – from ownership and division of property to spousal gifts and donations upon the birth of a first child to agreed-upon terms regarding spousal support. This can provide couples with added security and peace of mind, especially those with significant assets or who want to protect their individual interests, either during the marriage in financial troublesome times such as the sequestration of the parties’ estates and/or the liquidation of their businesses, or in the event of dissolution of the marriage, i.e., death or divorce.

What is a Prenup?

An antenuptial contract may be referred to as a “prenup”, a “prenuptial agreement”, a “pre-marital contract” and/or an “ANC”.

Irrespective of its name, an antenuptial contract is a written agreement reached between parties before the conclusion of a marriage or civil union, and registered in the Deeds Registry within 3 months thereafter, that:

💍 the matrimonial property regime that will apply to their marriage, will be out of community of property;

💍 the accrual system is either included or excluded from their marriage. If the parties fail and/or omit to expressly exclude the accrual system in the antenuptial contract, the accrual system will automatically apply to their marriage in terms of Section 2 of the Matrimonial Property Act, No. 88 of 1984; and

💍 any other terms and conditions in relation to each other and their assets, as long as it is legal, moral, and possible. In this respect, the antenuptial agreement supersede some of the default marital laws that would otherwise apply in the event of divorce, i.e., laws that govern the division of property, retirement benefits and savings, spousal maintenance etc.

Section 87 of the Deeds Registries Act, No. 47 of 1937, outlines the requirements for a valid antenuptial contract, which are as follows:

✅ The antenuptial contract must be witnessed and certified by a notary public; and

✅ The antenuptial contract must be registered in the Deeds Registry within 3 months from the date of its execution.

In addition to the above, an antenuptial contract may, in certain circumstances, be concluded after the marriage and registered outside the required 3 months.

For example, if a couple intended to finalize their antenuptial contract before getting married and agreed to its terms and conditions, but unfortunately fail and/or overlook the process of concluding and registering the antenuptial contract within the set timeframes, they have the option to seek permission from the High Court to conclude a “postnuptial contract”.

A postnuptial contract carries the same weight and have the same implications as an antenuptial contract, the only distinction being that it is concluded and registered after the marriage. This request is made under Section 88 of the Deeds Registries Act, No. 47 of 1937.

If you find yourself in need of a postnuptial contract, we kindly recommend that you seek counsel from your attorney who can provide expert advice and guidance regarding the necessary legal prerequisites and procedures.

An antenuptial contract and/or a postnuptial contract serves as a practical and proactive measure that allows individuals to establish clear guidelines and provisions regarding their assets, debts, and financial responsibilities at the commencement of the marriage.

From the outset, there are certainty regarding any and/or all aspect of the marriage. It acts as a legal framework for financial security and estate planning to navigate and mitigate potential legal disputes that may arise in the future, either during the marriage in the event of sequestrations, liquidations, or at its dissolution in the event of death or divorce.

Furthermore, both parties’ inputs and requirements regarding their respective needs, rights and obligations in the marriage is considered and documented, which reinforces the constitutional right to equality, provides a sense of control and certainty and promotes transparency and communication. It can address various aspects, such as property ownership, spousal support, inheritance rights, the division of joint assets etc.

Over the years, there have been a negative perception of antenuptial and postnuptial contracts as “it essentially pre-negotiates a potential divorce or potential financial hardship.” Some people further contend that “it suggests a lack of trust between the parties involved”.

“We love each other, want to be in everything together and we’re never going to divorce.” Second to “only rich people need an antenuptial or postnuptial contract”, this is probably the biggest misconception pertaining to antenuptial and postnuptial contracts and quite frankly, an uninformed, naïve and narrow-minded point of view.

All marriages end – either by death or divorce. The type of marital property regime determines the ease, simplicity, and fairness of that ending. It is important to further understand that the consequences of an antenuptial or postnuptial contract doesn’t only apply at divorce, but also during the subsistence of the marriage in financial hardships and/or success, at death etc.

Furthermore, while the wedding day is often filled with unconditional love and optimism, the reality is that there are no guarantees when it comes to the longevity of a marriage. Recognizing this uncertainty, it becomes essential to safeguard oneself and protect financial security through the use of an antenuptial or postnuptial contract.

While it may not be a romantic topic to discuss, entering into an antenuptial or postnuptial contract demonstrates a level of responsibility, practicality, and a commitment to securing one’s financial well-being. It can alleviate unnecessary stress and conflicts that often arise during the emotional process of financial hardships and/or separation, allowing both parties to approach such situations with a pre-established contract that reflects their mutual understanding and intentions.

Remember, an antenuptial or postnuptial contract is not a reflection of doubt or lack of trust in the relationship, but rather a sensible approach to protecting oneself and ensuring a fair resolution in the unfortunate event that a marriage does not endure or in financial troublesome times. It provides peace of mind and allows individuals to focus on the emotional and personal aspects of their relationship, knowing that their financial interests are adequately safeguarded.

Who needs a Prenup?

💍 Anybody and everybody!

By outlining specific guidelines for the division of property, investments, and other financial matters, an antenuptial or postnuptial contract enable couples to navigate potential complexities and avoid lengthy legal battles, ultimately safeguarding their hard-earned wealth.

Although financial and/or estate planning remains the primary motivation for pursuing an antenuptial or postnuptial contract, there are several other compelling factors to consider. The scope of such a contract extends beyond finances and echoes broader and more complex considerations involved in a marriage, such as minor children, milestones in the marriage, previous marriages, inheritances, spousal maintenance, excluded assets etc. If done properly, it allows parties to shape every aspect and/or cornerstone of their marriage, as long as it is legal, moral and possible.

People who have been hurt, left financially destitute and/or alienated from their children in previously failed marriages, find an antenuptial or postnuptial contract invaluable. It provides a sense of security and peace of mind by ensuring that any accumulated assets or debts are adequately protected, your rights towards you children are safeguarded, minimizes potential disputes and facilitates a smoother transition should the relationship come to an end.

Individuals who may be particularly susceptible to exploitation or harm within the context of marriage include those with significant assets, couples marrying at a young age, individuals entering impulsive marriages or unions and those involved in marriages or unions with partners from different countries. In the case of international marriages, an antenuptial or postnuptial contract can help clarify jurisdictional matters, asset rights, and potential challenges associated with different legal systems. It provides a framework for resolving potential conflicts and protecting the interests of both parties, regardless of their countries of origin. In each of these situations, it is advisable to prioritize self-protection as a prudent measure.

In summary, desiring an antenuptial or postnuptial contract is a responsible decision that extends the mere scope of finances. It demonstrates a commitment to clear communication, mutual respect, and ensuring fair and amicable resolutions in the unfortunate event or divorce, death or financial hardships. It is an opportunity to have open and honest conversations about your expectations, each other’s responsibilities and financial considerations in the marriage. With the antenuptial or postnuptial contract you can secure and preserve each other’s futures and interests and focus on building a future together.

In light of the above and the potential significance of an antenuptial or postnuptial contract, be sure to allocate ample time for thorough contemplation regarding your envisioned future and the required plans to establish and executed it. Your antenuptial or postnuptial contract is the first step towards achieving this. Employ a creative mindset whilst also taking into account the prospective requirements of your future children.

Why do people decide to enter an Prenup?

💍To look after the inheritance rights of children from a previous marriage.

💍To look after business interests, particularly if you own a business with others.

💍To protect your spouse and marriage when you choose to relinquish your career.

💍To protect any pensions or retirements earned prior to the marriage.

💍To look after family-owned properties, for instance an inherited property/house.

💍To separate debt responsibilities acquired upon divorce.

💍To protect one individual from debt that the other individual accumulated prior to marriage.

💍To decide what happens after marriage rather than being bound by default divorce laws.

💍To create agreements harmoniously and fairly while relations are supportive and positive.

💍To form fair financial securities for both partners, since the net worth or earning potential can differ significantly between partners.

💍To look after the older individual’s retirement and long-term healthcare requirements, since there can be a great age difference between the couple.

Best reasons for couples to get a Prenup:

An antenuptial or postnuptial contract gives the parties freedom to customize their rights and obligations in relation to each other and their assets, provided that it is legal, moral or possible.

Some of the reasons are as follows:

✅ An antenuptial or postnuptial contract offers the opportunity to restrict or exclude one spouse’s responsibility and/or liability for the debts incurred by the other spouse. This provision becomes particularly crucial during periods of financial hardships when creditors pursue repayment from a spouse.

In the case of a marriage out of community of property, the general principle dictates that each spouse is individually liable for their own debts and obligations, regardless of whether the accrual system is included or excluded and regardless of when such debts were incurred, whether before or during the marriage. This protects an ‘innocent’ spouse’s estate from creditors.

It is worth highlighting in the context mentioned, that a prodigal spouse who depletes or surrenders their estate during the subsistence of the marriage, will necessarily adversely affect the accrual when a marriage out of community of property with the inclusion of the accrual system, is dissolved. There are however legal safeguards in place to protect the “innocent” spouse’s accrual claim in these instances. It is important to consult with a qualified legal professional who is familiar with the specific laws and regulations in your jurisdiction to understand the precise legal safeguards applicable to your situation.

Furthermore, there are exceptions to the general rule. According to Section 23(5) of the Deeds Registries Act, No. 47 of 1937, both spouses share joint and several liability, for any debts or liabilities arising from essential household necessities related to their shared residence. This ensures that both spouses are responsible for debts incurred in connection with vital household needs, such as utilities, rent or mortgage payments and essential services.

✅ Overall, clauses in the antenuptial or postnuptial contract that limits or excludes a spouse’s responsibility or liability for the other spouse’s debts, safeguards the parties against the impact of financial hardships. It ensures that each spouse maintains a degree of financial autonomy and protects them from potential repercussions arising from their partner’s debts, while still acknowledging shared responsibility for essential household necessities;

✅ When entering into an antenuptial or postnuptial contract that operates under the accrual system, the parties may exclude specific assets and/or liabilities from being subject to the accrual system. This gives them the benefit and/or protection of the accrual system whilst safeguarding individual financial interests to ensure that particular assets or liabilities remain outside the scope of the accrual system’s equalization process.

✅ Entering into an antenuptial or postnuptial contract establishes clear guidelines regarding the division of assets in the event of death or a divorce. In the absence of an antenuptial or postnuptial contract, South Africa’s default marital laws come into play or the terms and conditions of a settlement agreement reached between the parties at the dissolution of a marriage by divorce.

This concept is commonly referred to as the “clean break principle“, which emphasizes the objective of prompt separation between the parties and minimizing future interactions. In the South African legal system, the courts generally encourage parties to pursue a settlement agreement rather than engaging in protracted and expensive contested divorce proceedings.

How to suggest a Prenup without upsetting your spouse?

The following tips can be helpful on navigating potentially sensitive discussions:

✅ Communicate to your future spouse/partner that you need to have an unpleasant but important conversation. Express to him or her that it is a difficult discussion to have and that you want to make it as productive as possible. Once you share and uncover your vulnerability, your partner will feel safe and will do the same with you.

✅ Discuss the need of an antenuptial or postnuptial contract in a quiet and peaceful environment. Make sure you are in a quiet place with no disturbances so that you can pay attention to your partner.

✅ Listen to your partner patiently and attentively. Be prepared to accept anything your partner says. You don’t necessarily have to agree, but listen flexibly without becoming defensive. Allow your partner to feel heard, validated and accepted by offering a caring reflection when your partner is talking.

What is in a postnuptial agreement?

Under certain circumstances, it is possible to execute and register an antenuptial contract after the marriage and beyond the required 3-month timeframe. If a couple had intended to conclude an antenuptial contract prior to the wedding day and had mutually agreed upon its terms and conditions, but inadvertently failed to complete the necessary process of concluding and registering the contract within the specified timeframes, they may opt to seek permission from the High Court to enter into a “postnuptial contract.”

A postnuptial contract carries the same legal weight and implications as an antenuptial contract, with the only distinction being that it is executed and registered after the wedding has taken place. The relevant legal provision for this request is Section 88 of the Deeds Registries Act, No. 47 of 1937.

If you require a postnuptial contract, it is advisable to consult with an attorney who can offer expert advice and guidance regarding the essential legal requirements and procedures involved.

What are the main marital property regimes?

In South Africa, there are three matrimonial property regimes available to couples.

These regimes determine how the assets and liabilities of spouses are managed during the course of their marriage and how the parties’ estate is dissolved upon its dissolution, in the event of either a divorce or death. It’s important to understand the characteristics and implications of each regime before making a decision.

✅ Marriage in community of property (no antenuptial or postnuptial contract necessary):

Marriage in community of property is the default matrimonial property regime in South Africa. In the absence of an antenuptial or postnuptial contract, this regime automatically applies. Under this regime, all assets and liabilities owned by each spouse prior to the marriage, as well as those acquired during the marriage, are merged into a joint estate. Both spouses share equal ownership and management of the estate, and each has an undivided half-share in all assets and liabilities.

✅ Marriage out of community of property, without the accrual system (an antenuptial or postnuptial contract needed):

This marital property regime allows spouses to maintain separate ownership of assets and liabilities. Each spouse retains full ownership and control over their respective assets and debts. It’s important to note that without the inclusion of the accrual system, there is no sharing of assets or liabilities upon divorce or death. Each spouse maintains individual financial independence and is solely responsible for their own debts and obligations.

✅ Marriage out of community of property, with the accrual system (an antenuptial or postnuptial contract needed):

This regime also allows spouses to maintain separate ownership of assets and liabilities. However, it incorporates the accrual system, which introduces a framework for the sharing of assets accumulated during the marriage, at its dissolution. The accrual system calculates the growth of each spouse’s estate from the date of marriage to the date of divorce or death. Upon termination of the marriage, the spouse with a smaller accrual is entitled to share in the growth of the other spouse’s estate, ensuring a fair distribution of wealth accumulated during the marriage.

Choosing a specific matrimonial property regime is an important decision that should be made before getting married or entering into a civil partnership.

By understanding the various matrimonial property regimes available in South Africa, couples can make informed choices that align with their financial goals, interests and values. Seeking legal advice or consultation with a professional is recommended to ensure a comprehensive understanding of the implications and potential consequences of each regime.

What is an Antenuptial Agreement (ANC)?

An antenuptial contract may be referred to as a “prenup”, a “prenuptial agreement”, a “pre-marital contract” and an “ANC”.

With or without accrual?

Section 2 of the Matrimonial Property Act, No. 88 of 1984 determines that the accrual system will automatically apply to all marriages out of community of property, unless the parties explicitly exclude it in their antenuptial or postnuptial contract.

The fundamental concept underlying the accrual system is that the growth of a spouse’s estate during the duration of the marriage is a result of the contributions made by both spouses, whether directly or indirectly.

For example, when a couple makes the decision for one spouse to take on the responsibility of being a stay-at-home parent, overseeing childcare and household management, while the other spouse focuses on pursuing a career to provide financial support, it often results in an asymmetry in the growth of their respective estates.

The estate of the working spouse tends to naturally expand, while the estate of the non-working spouse typically remains relatively unchanged. If the non-working spouse were to embark on a career path, their estate would have the potential to grow as well. However, such a transition would likely require additional household expenditures, such as hiring a nanny or domestic help, to effectively balance the demands of work and family responsibilities..

The objective of implementing the accrual system is to mitigate any potential inequality and protect the rights of the spouse who makes career sacrifices for the benefit of the family.

Upon the termination of the spouses’ individual estates, whether due to divorce or death, the accrual system ensures an equitable distribution of the accumulated growth in each spouse’s estate. This entails that the spouse whose estate experienced comparatively slower or restricted growth due to non-financial contributions is entitled to a portion of the growth attained by the other spouse.

The accrual system recognizes and acknowledges the sacrifices made by one spouse in favour of the family’s well-being. It aims to provide a fair and equitable mechanism for wealth distribution when the marriage ends, ensuring that both spouses are able to benefit from the combined efforts and contributions made during the marriage or union.

By implementing the accrual system, the law acknowledges the importance of recognizing and valuing non-financial contributions within a marriage, such as child-rearing and homemaking, which often have long-term implications on the respective spouses’ financial circumstances.

How to legally conclude and register a Prenup:

Consultation with an attorney: Schedule a consultation with a qualified attorney who specializes in family law or matrimonial matters, preferably before the wedding day, alternatively as soon as possible thereafter. During the consultation, you can discuss all of your intentions and requirements for the antenuptial or postnuptial contract.

Drafting an antenuptial or postnuptial contract. Work closely with your attorney to draft the antenuptial or postnuptial contract. This document inter alia outlines each parties’ rights and responsibilities, the distribution of assets etc. in the event of a financial hardships, divorce or death. It’s important to provide accurate and comprehensive information about your financial situation and assets.

Seek independent legal advice: To ensure that both parties’ interests is protected, it is advisable for the parties to seek independent legal advice. This means that each party consults with their own attorney to ensure their individual rights and interests are protected.

Signature and notarization: Once both parties are satisfied with the content of the antenuptial or postnuptial contract, all parties must sign the document in the presence of a notary public. The notary public will verify the identities of the parties involved and witness the signing of the document.

Registration at the Deeds Office: The signed antenuptial or postnuptial contract needs to be registered at the relevant Deeds Office within 3 months of the date it was signed by and before the notary public. The Deeds Office is a government institution responsible for recording and maintaining legal documents related to property and land ownership. You will need to submit the original signed contract along with any required supporting documents, to the Deeds Office. If an antenuptial contract is not signed or registered timeously, the couple can approach the High Court in terms of the Deeds Registries Act, No. 47 of 1937 through a joint application to grant condonation for the late signing and/or registration of a postnuptial contract. The application must be made within a reasonable time after it was learnt that the antenuptial contract was not registered. If you require a postnuptial contract, it is advisable to consult with an attorney who can offer expert advice and guidance regarding the essential legal requirements and procedures involved.

Paying the registration fee: There is a fee associated with the registration of the antenuptial or postnuptial contract. The fee may vary depending on the jurisdiction and the complexity of the contract. You will need to pay this fee at the time of registration.

Obtain a Notarial Certificate: After registering the antenuptial or postnuptial contract, the Deeds Office will issue a notarial certificate. This certificate serves as proof that the contract has been properly registered and is legally valid.

Safekeeping and Sharing: It is crucial to keep a copy of the antenuptial or postnuptial contract in a safe and easily accessible place. You may also want to provide copies to your respective attorneys and keep a digital backup for added security.

It’s always advisable to consult with a qualified attorney who can guide you through the registration process based on the applicable laws.

Marriage in community of property:

This matrimonial property regime is the primary and default marital property regime in South Africa, characterized by the principle of shared ownership: “what’s yours is mine” and vice versa.

With a marriage in community of property, the parties’ separate estates are combined into a single joint and communal estate at the moment of marriage, as mandated by law.

If the parties fail to establish and register a notarized antenuptial contract or postnuptial contract within the required timeframe, they will automatically enter into a marriage “in community of property,” and this status will be officially recorded in the Deeds Office.

This type of marriage can pose challenges for a financially cautious spouse marrying a financially carefree partner. The debts incurred by the financially carefree spouse automatically become the responsibility of the financially cautious spouse when they say their vows, which can be burdensome.

Marrying out of community of property:

When a couple chooses to enter into a marriage out of community of property, whether it includes the accrual system or not, the patrimonial consequences are clear and straightforward.

In this type of marriage, the individual estates of each party remain separate, and their ability to manage their own assets and make independent financial decisions, is preserved.

This means that both partners have the freedom and autonomy to handle their personal property as they see fit, without interference from each other. They can buy, sell, and manage their assets independently, without requiring consent or approval from the other spouse.

A marriage out of community of property allows both parties to maintain control over their individual estates and exercise full discretion in managing their assets.

Another significant advantage of a marriage out of community of property is that it provides protection for each partner’s assets in the event of one partner being declared insolvent or his/her business being liquidated.

If, for example, one spouse encounters financial difficulties and is unable to meet their obligations, the creditors will not be able to seize or lay claim to the other spouse’s property. This safeguard ensures that the solvent partner’s assets remain protected and separate from the financial troubles of the insolvent partner.

Marrying out of community of property, without accrual

When couples decide to marry out of community of property, they have the option to include or exclude the accrual system in their marriage.

If the couple chooses to marry out of community of property without application of the accrual system, each individual’s pre-marital property, as well as any assets acquired during the marriage, remains the sole ownership of that individual. This includes any associated liabilities, such as debt.

Advantages:

✅ A partner is in control of his/her assets independently.

✅ A partner does not need permission from the other partner to enter into any agreements.

✅ A partner cannot claim any assets from the other partner upon divorce.

Disadvantages:

✅ If one partner surrenders his/her career or, decide to stay at home to look after the children, the other partner is not obligated to share his/her assets with you. The lower-earning partner may have surrendered a great income in order for the other spouse to maximise earnings.

An antenuptial or postnuptial without accrual is somewhat the same as getting married but remaining single insofar as each partner’s finances are concerned. Everything made, bought, inherited or accumulated by any partner throughout the marriage remains entirely theirs and does not affect the other partner.

Money in either partner’s account belongs entirely to them. Insolvency of a spouse does not have an influence of the other’s assets or legal status. This marriage regime is financially considerably quicker and simpler upon divorce, but it may not be the fairest or most straightforward.

Marrying out of community of property with application of the accrual system

By default, if the accrual system is not explicitly excluded in the antenuptial contract, the couple will be married out of community of property with application of the accrual system.

Both partners are entitled to a fair share of the combined estate in the event of divorce. The concept of “accrual” refers to the overall increase in the combined wealth of the married couple during the marriage. It represents the total value by which the partners’ joint wealth has grown over the duration of their marriage. The individual estates are assessed before the marriage and again during the divorce process. The difference between the respective increases in the total value of the estates throughout the marriage is divided equally between the partners.

The accrual system aims to make sure that both partners gain a reasonable portion of the estate upon divorce. The word “accrual” means the “net growth” in value of a partner’s estate since the start of marriage

It is important to know that each partner retains a separate estate during their marriage, but the right to share in the accrual can only be applied upon divorce. During the marriage each partner retains control of their own property and is responsible for his or her own debts.

Advantages:

✅ This system guarantees that you are covered if you decide to be a stay at home parent

✅ A partner is not liable for another partner’s debt

✅ The assets one owned prior to marriage are protected and won’t be part of the marriage contract in South Africa

✅ Spouses share their net assets and if one partner becomes insolvent, the other spouse is safe against creditors.

Disadvantages:

✅ If you are financially stronger than your partner, you are obligatory to share the assets that was accumulated during your marriage

✅ Partners do not share in each other’s credit worthiness, which can have the result that the stay at home partner may have little credit worthiness during marriage if his/her estate is small.

✅ Calculating the accrual can be difficult, depending on the complexity of the estates.

Some assets are left out from the accrual. These include, for example, the following:

- - Inheritance received throughout marriage
  - Donations or gifts the partners may give each other during marriage
  - Assets explicitly excluded in a prenup

How to determine each estate’s accrual:

Calculation of the Accrual – A Practical Example:

Mr. Schoeman and Mrs. Schoeman and were married in December 2015 and decided to divorce in September 2022, whereafter a divorce summons was instituted in October 2022. In terms of the antenuptial contract, Mrs. Schoeman had a commencement value of R 1, 500, 000.00 and Mr. Schoeman had a commencement value of nil rands. At the date of divorce, Mrs. Schoeman’s estate was valued at R 3, 000, 000.00 and Mr. Schoeman’s estate was valued at R 250, 000.00.

Step 1: Obtain the commencement net values of spouse’s estates:

In terms of Section 6(1) of the Matrimonial Property Act, No. 88 of 1984, the spouses can either:

declare their commencement values in the antenuptial contract; or

declare the values thereof within 6 months after the marriage is concluded. The declaration needs to be contained in a written statement, signed by both parties, attested by a notary public and filed in the protocol of the notary before whom the antenuptial contract was executed. A declaration to this effect serves as prima facie proof of the parties’ net commencement values in respect of third parties and as conclusive proof of the net commencement values inter parties i.e., between the parties.

If the parties however fail and/or neglect to include their net commencement values in the antenuptial contract and/or to conclude a separate statement in terms of Section 6(1) of the Matrimonial Property Act, No. 88 of 1984, there is a rebuttable presumption in terms of Section 6(4) of the Matrimonial Property Act, No. 88 of 1984, that the net commencement values are zero. The rebuttable presumption extends to circumstances in which a spouse(s) liabilities exceed his assets at commencement.

Step 2: Adjust the commencement net values in accordance with CPI and inflation:

To determine the growth of the parties’ estates, the commencement values in the antenuptial contract need to be adjusted in accordance with the CPI and inflation to determine their ‘real’ values in October 2022.

The following formula is used to determine the adjusted commencement values:

To find the historical CPI values, visit www.statssa.gov.za and click on the Historical CPI tab to download the PDF.

Based on the aforesaid formula and the CPI headline values, the adjusted commencement value is R 2, 161, 9433.32 and calculated as follows:

Step 3: Do the accrual calculation:

To calculate accrual, you would now follow these steps:

Mrs. Schoeman:

1. 1. R 3, 000, 000.00 (the end value) – R 500, 000.00 (liabilities and debt deductions) = R 2, 500, 000.00
  2. R 2, 500, 000.00 – R 2, 161, 9433.32 (adjusted commencement value ) = R 338, 056.68.

Mrs. Schoeman’s accrual is this R 338, 056.68.

Mr. Schoeman:

1. 1. R 250, 000.00 (the end value) – R 100, 000.00 (liabilities and debt deductions) = R 150, 000.00
  2. R 150,000.00 – R nil (adjusted commencement value) = R 150, 000.00.

Mrs. Schoeman’s accrual is this R 150, 000.00

Step 4: Do the division of the accrual calculation:

In light of the above, Mr. Schoeman’s estate has a smaller accrual than Mrs. Schoeman’s estate. In terms of Section 3 of the Matrimonial Property Act, 88 of 1984 Mr. Schoeman is thus entitled to half of the difference between the accrual of the Mr. and Mrs. Schoemans’ estate.

To calculate the division, you would now follow these steps:

1. 1. Deduct Mr. Schoeman’s estate accrual from Mrs. Schoeman’s estate accrual:

R 338, 056.68 – R 150, 000.00 = R 188, 056.68

2. Divide R 188, 056.68 in half:

R 188, 056.68 / 2 = R 94, 028.34

Mr. Schoeman thus has an accrual claim against Mrs. Schoeman is the amount of R 94, 028.34.

PS: If you add Mr. Schoeman’s accrual (R 150, 000.00) to the claim amount (R 94, 028.34), you will get a total growth of R 244 028.34, the exact amount of accrual Mrs. Schoeman will have after the claims deduction (R 338, 056.68 – 94, 028.34). Thus, Mr. and Mrs. Schoemans’ estates will have grown by the same amount since the inception of their marriage.

Traditional marriages under the Recognition of Customary Marriage Act, No. 120 of 1998:

Customary marriages in South Africa are a significant part of the country’s cultural heritage and legal system. They are recognized and governed by the Recognition of Customary Marriages Act, No. 120 of 1998, which aimed to give legal recognition and protection to customary unions.

In South Africa, customary marriages are a form of marriage recognized under traditional African customs and practices. They typically involve ceremonies and rituals that are specific to the culture or ethnic group of the individuals involved. These marriages are prevalent among various ethnic groups in the country, such as Zulu, Xhosa, Sotho, and Swazi, among others.

To be considered valid, a customary marriage must meet certain requirements. These include:

1. 1. Voluntary union: Both parties must willingly consent to enter into the marriage.
  2. “Lobola” or bride price: The payment of lobola, a traditional bride price, is a common practice in customary marriages. It involves negotiations between the families of the bride and groom, where the groom’s family provides gifts, livestock, or money to the bride’s family.
  3. Traditional customs and rituals: The marriage ceremony must follow the customs and rituals of the specific cultural group. These may include the exchange of gifts, traditional attire, rituals performed by elders or spiritual leaders, and community participation.
  4. Registration: To ensure legal recognition, the marriage must be registered with the Department of Home Affairs within a specified period after the wedding ceremony. Failure to register may result in the marriage being considered invalid.

Customary marriages enjoy legal recognition and provide various rights and protections to the spouses. These include the right to inherit property, share in the estate of a deceased spouse, and claim maintenance or support in the event of a divorce.

Same sex marriages

South Africa is notable for being one of the few countries in the world that legally recognizes same-sex marriages and provides equal rights and protections to same-sex couples. The recognition of same-sex marriage in South Africa is a result of a landmark decision by the Constitutional Court in 2006.

In South Africa, same-sex marriage is governed by the Civil Union Act, No. 17 of 2006, which grants couples of the same sex the right to enter into a legally recognized marriage. This Act provides for the solemnization, registration, and dissolution of civil unions, regardless of the gender of the individuals involved.

Under the Civil Union Act, same-sex couples have the same legal rights and responsibilities as opposite-sex couples who are married. This includes rights related to property ownership, inheritance, tax benefits, and access to spousal benefits such as medical aid and pension funds.

The legal requirements for a same-sex marriage in South Africa are similar to those for opposite-sex marriages. Both parties must be of a minimum age (18 years old), provide consent to marry, and comply with the necessary administrative procedures for registering the marriage.

The recognition of same-sex marriages in South Africa is seen as a significant step towards equality and inclusivity. It reflects the country’s commitment to protecting the rights of all individuals, regardless of their sexual orientation. However, it’s important to note that societal attitudes and acceptance towards same-sex relationships may still vary, and challenges related to discrimination or prejudice may persist.

Overall, same-sex marriages in South Africa are legally recognized, providing couples with the same rights, benefits, and protections as heterosexual marriages, contributing to a more inclusive and equal society.

Can you sign a Prenup after marriage?

The antenuptial contract must be signed before the wedding day but only registered in the Deeds Registry within 3 months from the date of its execution, which would in most circumstances, be after the wedding day.

It is possible to sign an antenuptial contract after marriage, but the process is slightly different compared to signing it before marriage. When a couple gets married without an antenuptial contract, their marriage is automatically considered to be in community of property unless they take specific steps to change it.

To change the matrimonial property regime from “in community of property” to “out of community of property”, the couple needs to apply to the High Court for permission to sign a postnuptial contract. This process requires filing an application with the court, providing reasons for the proposed change, and demonstrating that there is no intent to defraud creditors or prejudice any other person’s rights.

The court will evaluate the circumstances and consider various factors such as the couple’s reasons for wanting to change their matrimonial property regime and the potential impact on creditors and any children of the marriage. If the court grants permission, the couple can then sign a postnuptial contract that outlines the new terms and conditions of their matrimonial property regime.

It’s important to note that the process of changing the matrimonial property regime after marriage can be more complex, time-consuming, and costly compared to signing an antenuptial contract before marriage. It is generally advisable for couples to discuss and make decisions about their matrimonial property regime prior to getting married to ensure clarity and protection of their assets.

If you are considering changing your matrimonial property regime after marriage, it is recommended to consult with a qualified attorney who specializes in family law to guide you through the legal process and provide advice based on your specific circumstances.

For how long is a Prenup valid?

An antenuptial or postnuptial contract remains in effect until one of the following events occurs:

1. 1. Death: The contract is no longer applicable upon the death of one of the spouses;
  2. Divorce: If the couple gets divorced, the terms of the antenuptial or postnuptial contract may come into effect and govern the distribution of assets and other matters as agreed upon in the contract.
  3. Change of the matrimonial property regime: The parties may change the matrimonial property regime in accordance with the requirements as set out in Section 21 of the Matrimonial Property Act, No. 88 of 1984.

Can a will or final testament override a Prenup?

No.

Can a Prenup be overturned?

No.