Marriage is more than a romantic union—it’s also a legal partnership that has significant implications for your financial future. In South Africa, couples can choose from different marriage regimes that determine how assets and liabilities are managed during the marriage and in the event of death or divorce. One of the most critical legal tools in this context is the Ante Nuptial Contract (ANC).

This article provides a clear overview of South Africa’s marriage regimes, the purpose of an ANC, and why it’s vital for couples to understand their options before saying, “I do.”

What Is a Marriage Regime?

A marriage regime refers to the legal system that governs the financial relationship between spouses. In South Africa, there are three main marriage regimes:

1. Marriage in Community of Property

This is the default marital regime if no ANC is signed before the marriage.

Key Features:

• All assets and debts (before and during the marriage) are shared equally.
• Each spouse has an undivided half-share in the joint estate.
• If one spouse is declared insolvent, the entire joint estate is affected.
• Requires consent for certain financial transactions.

Risks:

• Personal debts and liabilities affect both spouses.
• Unequal financial contributions still result in equal ownership.

2. Marriage Out of Community of Property (With an ANC)

This regime requires an Ante Nuptial Contract to be signed before the marriage is registered.

Key Features:

• Each spouse retains separate ownership of their assets and debts.
• No joint estate—each person is responsible for their own finances.
• Greater financial independence and protection from each other’s creditors.

Ideal For:

• Business owners, professionals, or individuals entering the marriage with substantial assets.
• Couples who prefer financial autonomy.

3. Marriage Out of Community of Property with Accrual

This is a variation of the ANC, where each spouse maintains separate estates during the marriage, but shares in the growth (accrual) of each other’s estates upon divorce or death.

Key Features:

• Protects premarital assets, but allows fair sharing of growth accumulated during the marriage.
• The partner whose estate grew less is entitled to half the difference in value at dissolution.
• Assets excluded in the ANC are not considered part of the accrual.

Advantages:

• Encourages joint contribution and protects financially weaker spouses.
• Balances independence with fairness.

What Is an Ante Nuptial Contract (ANC)?

An Ante Nuptial Contract is a legal agreement signed before marriage that determines whether the marriage will be in or out of community of property, and whether the accrual system will apply.

Why Sign an ANC?

• Protects personal assets from a spouse’s creditors.
• Prevents automatic creation of a joint estate.
• Enables customized financial arrangements.
• Ensures clarity and legal certainty in the event of divorce or death.

Legal Requirements for an ANC:

• Must be signed before the wedding.
• Must be notarized by a notary public.
• Must be registered at the Deeds Office within 3 months of signing.

What Happens If You Don’t Sign an ANC?

If no ANC is signed, the marriage automatically defaults to in community of property, and a joint estate is created. This may not suit everyone—particularly individuals with businesses, substantial personal assets, or children from previous relationships.