Types of marriage contracts

 

In South Africa, there are two main types of marriage contracts that determine how a couple’s finances will be handled during the marriage and upon divorce:

 

• In Community of Property (default):

  • ✅ This is the automatic matrimonial property regime if no other contract is signed.
  • ✅ All assets and liabilities acquired during the marriage are shared equally by the spouses.
  • ✅ This means everything you buy together (like a house or car) and any debts incurred during the marriage (like a mortgage or loan) become jointly owned.
  • ✅ Assets owned before the marriage and certain other exclusions (explained below) generally remain separate.

 

• Out of Community of Property (with or without the accrual system):

  • ✅ This requires an antenuptial contract signed by both parties before the marriage.
  • ✅ An antenuptial contract allows you to opt out of the community of property regime and specify how your finances will be handled.

 

Types of Antenuptial Contracts (Out of Community of Property):

 

• Out of Community of Property with Accrual System:
  • 📌 Each spouse keeps ownership of the assets they bring into the marriage and those they acquire during the marriage.
  • 📌 However, at the end of the marriage (through divorce or death), the spouse who’s estate has grown by a lesser percentage compared to the other spouse’s estate can claim half of the difference in growth.
  • 📌 This aims to achieve some financial equalization for the spouse whose estate grew less during the marriage.

 

• Out of Community of Property Without Accrual System:
  • 📌 This provides the strictest financial separation.
  • 📌 Each spouse maintains complete control over their assets and liabilities throughout the marriage and upon divorce.
  • 📌 There’s no equalization of estate growth.

 

 

Choosing the Right Marriage Contract:

 

The best option for you depends on your individual circumstances, financial situation, and future goals. Here are some factors to consider:

 

• ✔️ Do you have significant pre-marital assets?
• ✔️ Do you expect to inherit assets in the future?
• ✔️ Do you own a business?
• ✔️ Do you have different risk tolerances?
• ✔️ How comfortable are you with sharing your finances completely?

 

 

Consulting a Lawyer:

 

It’s highly recommended to consult with a lawyer specializing in family law before entering into any marriage contract. They can explain the implications of each option, draft a contract that suits your needs, and ensure it’s legally sound.