Ante Nuptial Contracts - An introduction

South African law provides that all registered marriages or civil unions are in community of property and most assets and liabilities of the spouses to a marriage or the partners to a civil union fall into a joint Estate. There are circumstances, also contained in law, where a Court may direct that community of property does not apply.

An Ante Nuptial Contract is drawn up to exclude community of property and community of profit and loss from the marriage.

A system of Accrual is provided for by law.

Unless Accrual is excluded in the Ante Nuptial Contract, it is automatically included.

It is possible to exclude Accrual from an Ante Nuptial Contract.

Accrual is the amount by which the net value of the Estate at the dissolution of marriage exceeds the net value at commencement. Commencement values would have to be specified.

Upon dissolution of a marriage subject to an Ante Nuptial Contracts with accrual; the spouse whose Estate shows no accrual or a smaller accrual that the Estate of the other spouse acquires a claim against him or her for an amount equal to half the difference between their separate accruals. Certain items are excluded from accrual.

In order to be valid against third parties, Ante Nuptial Contracts need to be entered into before the marriage and presented for registration in the Deeds Office only by a registered Notary of the High Court within a certain time frame.

It is possible to register a Post Nuptial Contract at any point during your marriage, by approaching the High Court of South Africa.

Both Ismail Ayob and Zayd Ayob are registered Notaries of the High Court of South Africa and would be more than happy to assist you during a consultation.