Congratulations on your engagement and pending nuptials!
Marriage is most certainly one of the biggest commitments that one will make during one’s lifetime, and unfortunately, it also ranks among our biggest causes of stress.
There are 3 possible marital regimes in South Africa for couples to choose from and each regime has its own advantages and disadvantages. The default marital regime in South Africa is “in community of property”, and if a couple wants to get married in terms of one of the other marital regimes they are required to enter into an antenuptial contract that records the chosen marital regime.
This is an extremely important document and you need to get it right – the first time around.
The 3 regime options are:-
- A marriage in community of property (this is the default system!)
- A marriage out of community of property
- A marriage out of community of property but with the accrual
Please don’t let decisions regarding your marital regime and your antenuptial contract get you stressed out. Let us assist you with ensuring that you chose the best marital regime for you, and let us assist in taking away the stress caused by the drafting and submission of your antenuptial contract!
Moving forwards (Consultation & the cost)
Our family law team can assist in providing you with a clear understanding of South Africa’s marital regimes so that you can make an educated and informed choice and begin your married life together.
We charge a nominal fee of R3,846.00 inclusive of VAT.
This “all inclusive” fee includes the following:-
- a 1-hour consultation with one of our attorneys to discuss the different marital regimes and your antenuptial contract, the implication of the incorporation and exclusion of the accrual system, and other questions regarding your antenuptial contract
- the actual drafting of the antenuptial contract
- signing and executing the antenuptial contract in front of a Notary Public
- attending to the registration of the antenuptial contract to the relevant Deeds Office
- providing you with a letter to give to your marriage officer confirming that you’ve entered into an antenuptial contract
- the statutory Deeds Office registration fees (currently R396.00)
As you can see, there are NO hidden charges, fees, or costs.
If you are not able to come into our office for the consultation, we can also arrange for the consultation to be held telephonically or via skype.
We answer some common questions:
Is this the same as a “prenup”?
A “prenup” or “prenuptial” agreement is a term that has been popularised in pop culture and generally refers to a marital contract entered into in the United States of America. In essence, both a prenuptial agreement and an antenuptial agreement deal with how assets and liabilities will be handled between the two of you as a couple and between you and third parties, so you could consider them to be the same.
Do we have to sign an antenuptial contract?
No, you don’t need to sign an antenuptial contract, however, if you choose not to sign one before your marriage ceremony then your marriage will be governed by the default marital regime which means you will be married “in community of property”. This might have unintended consequences for you and your spouse which you are not aware of.
Do we have to decide before we get married?
Probably the most important question typically asked, and the answer is a resounding YES, you most certainly need to decide which marital regime you want to govern your marriage BEFORE you are actually married. You need to sign the antenuptial contract before the marriage, and your attorney needs to take steps to ensure that the antenuptial contract is registered at the relevant Deeds Office. Remember, your antenuptial contract needs to be signed before the civil ceremony (whether this is at Home Affairs, or in court or at your actual wedding celebration). You cannot get married in a court and decide to sign an antenuptial contract 3 months later because that is when your main celebration/party is scheduled.
Can we change our marital system after we’ve gotten married?
Yes, you can – but the sooner the better! To change your marital regime you would need to bring a High Court Application (known as a Postnuptial Application). This process involves a full-blown High Court application with affidavits, lawyers and advocates. In addition, you would bear the costs of the entire process which are in excess of R30,000.00 exclusive of VAT.
What about Customary Marriages? What happens here?
Since 1998 South Africa has formally recognised marriages which are entered into through customary ceremonies. The Recognition of Customary Marriages Act of 1998 recognises both monogamous and polygamous marriages and provides them with the same recognition as civil marriage, subject to the ceremony complying with the Act. If neither spouse is married already, then the customary marriage will be considered to be “in community of property” (the same as everyone else!) unless the parties sign an antenuptial contract prior to the customary ceremony.
Read our article entitled: Customary marriages and the need for an Antenuptial Contract
What about same-sex marriages?
Same-sex marriages are governed in terms of the Civil Union Act and are treated the same way as marriages entered into between a man and a woman.