Antenuptial Contracts Regulate Property, Not Behaviour

The antenuptial contract in South African law is a legal contract drawn up between partners before they enter a civil marriage or civil union. Governed by the Matrimonial Property Act, it determines how the couple share the assets they already own and those they acquire during their marriage, and how these assets are distributed on dissolution of the marriage through divorce or death. The contract cannot be used as a tool to compensate you financially if your marriage fails.

The three marital property regimes

There are three options for couples on how they want their property to be treated:

1. In community of property: The couple’s separate estates (what they already own and what they acquire during the marriage) become merged in a joint estate. On dissolution of the marriage, the joint estate is divided equally (50/50) between the divorcing spouses or between the surviving spouse and the deceased estate of the late spouse. With a couple of exceptions involving customary African and Muslim marriages, this is the default property regime for couples who have not drawn up an antenuptial contract or whose contract is invalid. Put another way, if there is no valid antenuptial contract, this is the regime that applies.

2. Out of community of property without accrual: The couple’s estates remain entirely separate during and on dissolution of the marriage. This, again apart from one or two customary-marriage exceptions, requires an antenuptial contract that specifically states that the estates be kept separate and that there is no sharing of assets accrued during the marriage.

3. Out of community of property with accrual: This represents a middle route whereby each spouse retains what they own before marrying but agree to share property accrued during the marriage. The antenuptial contract thus needs to take account of each partner’s existing assets and liabilities (debts) at the time of the marriage to calculate the distribution of assets on divorce or death.

Requirements for a valid contract

In his online guide for couples drawing up an antenuptial contract, family attorney Simon Dippenaar lists the following requirements for a valid, legally binding document:

• It must be executed before the marriage;

• It must be authenticated by a notary public (an attorney with the power to authenticate and witness legal documents such as contracts); and

• It must be registered in the Deeds Office within the required period (normally within three months of execution).

“If any of these steps are missed, you do not simply have a ‘minor admin problem’; you may have a regime problem,” Dippenaar says.

What should the contract contain?

The contract must state the choice of regime, as outlined above. If the choice is in community of property with accrual, it must contain the values of each partner’s existing estate (his or her assets minus liabilities), known as commencement values, and identify any lawful exclusions. An exclusion would be if there was something that might accrue to your estate during your marriage that you want excluded from the accrual, such as an inheritance.

Another example would be if you own a business and want to exclude existing and future business assets from the accrual.

What should the contract not contain?

Phumelelo Simelane, managing director of Simelane Attorneys, says marrying couples often want to include clauses that are unenforceable, typically related to financial compensation for a spouse if the marriage fails or if a partner is unfaithful.

“People tend to confuse antenuptial contracts in South Africa with prenuptial contracts in the US, which allow for a variety of conditions. In South Africa, in terms of the Matrimonial Property Act, the antenuptial contract serves predominantly to regulate the property regime of the marriage and not the patrimonial consequences of the marriage. For example, spousal maintenance cannot be included in an antenuptial contract; only through a settlement on divorce could a spouse be awarded maintenance,” he says.

Simelane, who deals with antenuptial contracts daily, says that in almost every consultation the question of infidelity or adultery, in one form or another, inevitably arises. “The big one is they want to include a provision that compensates them if their partner commits adultery or some sort of infidelity. This could be as ludicrous as, for example ‘if my spouse cheats on me, then he should buy me a BMW X5 or a holiday in Mauritius’,” he says. 

Simelane says the bar or threshold is that any condition in a contract that goes against public policy is generally invalid or void. “Public policy” refers to upholding the norms and moral values of society. “The contract must be within the norms of public policy, which means that it would be what a ‘reasonable person’ would expect,” he says.