Without doing anything else, marriages in South Africa are automatically In Community of Property. This means that everything owned by the parties both before and acquired after the marriage is shared at the end of the marriage, either through divorce or death. Agreements affecting both parties, (eg property sale agreements) are usually in both parties’ names and registration takes place in both parties’ names including mortgage bonds and other debts.
If one wants to keep assets acquired before the marriage separate, or keep debts only in the name of the party incurring the debt, it is advisable to get married Out of Community of Property. You do this by signing an Ante-Nuptial or pre-marriage contract. The contract is executed before a Notary Public and is registered thereafter in the Deeds Office. There are two types of Ante-Nuptial Contracts, either Including the Accrual System or Excluding the Accrual system.
The introduction of the Accrual system in the Matrimonial Property Act of 1984 introduced a sharing of assets during the marriage, but allows parties to keep assets separate that were owned before the marriage. You can therefore choose to either keep all assets separate – acquired both before and during the marriage (Exclude Accrual) – or you can keep assets acquired before separate, and share assets acquired during the marriage (Include Accrual).
For the purposes of an Accrual ANC you need to work out the net values of your property (assets less liabilities) and this value as at the start of the marriage is set out. It can be Rnil if you like. All assets acquired afterwards are shared, even if the asset is in one person’s name only.
The inclusive costs of registering an Antenuptial Contract is set out in the link and covers everything: preparation, Notarial execution and Deeds Office registration. You can either make an appointment to come to our offices to prepare your contract, or you can print out the document online here, or by clicking on the advert to the left, and posting the original to us before you get married so that we can execute it before your marriage date. (Excluding Accrual system, download here)
The Civil Union Act legalised same-sex marriages or Civil Unions in South Africa and the same principles apply to the registration of a pre-marriage or pre-civil union Contract and the same form you can download here can be used to register such a contract in the Deeds Office. (Excluding Accrual system, download here)
Mc Naught and Company can advise you on all aspects of marriage and civil union or even co-habitation agreements if you do not intend to get married.
Our offices generally don’t handle divorces as this involves litigation in the High Court, unless you have reached an amicable agreement with your spouse and want a divorce in the simplest and cheapest terms. If a settlement can be reached, we will gladly handle your divorce on an uncontested basis. For this purpose you can print out a simple Divorce Settlement Agreement on this page here, or we can prepare one for you, and then handle your divorce at a lower cost. For contested divorces, custody or maintenance disputes requiring court work, you will need to consult another attorney.