Ante-nuptial contracts and how marriage affects property

The three marital regimes

• In community of property. The default if no ante-nuptial contract (ANC) is signed. The spouses share one joint estate, including property and debts.
• Out of community of property with the accrual system. Each spouse has a separate estate during the marriage. On divorce or death, the growth (accrual) in the estates is shared.
• Out of community of property without the accrual system. The estates are completely separate during and after the marriage.

Signing an ante-nuptial contract

To marry out of community of property, an ANC must be:

1. signed by both parties before the marriage, in the presence of a notary public and two witnesses; and
2. registered in the Deeds Office within three months of signature.

An ANC that is signed after the wedding, or not registered in time, needs a court application to fix. Plan ahead and allow enough time before the wedding.

How your marital regime affects property transactions

When you buy property, the conveyancer must record your marital status in the title deed. If you are married in community of property, the property forms part of the joint estate and both spouses generally need to consent in writing to its sale or to a bond over it.

If you are married out of community of property, property registered in your name is yours alone, and your spouse does not need to sign.

Marriages concluded abroad

If you married outside South Africa, the property consequences of your marriage are usually determined by the law of the country where the husband was domiciled at the time of the marriage. The conveyancer will ask for details so that the title deed records the position correctly.

Changing your regime after marriage

Spouses can change their marital regime after the wedding only with the approval of the High Court, followed by registration of a postnuptial contract.