You have decided on the venue, the cake and centerpieces: but have you decided what type of antenuptial contract you want?

Thinking about the dissolution of your marriage before you have even said, "I do" is awkward and unromantic. No one gets married with the intention to get divorced. Even though this might not be the case with you and your prospective spouse, the fact of the matter is that life happens, situations change, people change and the dissolution of your marriage does not only mean divorce but also death. It's therefore imperative that you decide on a marital regime or contract that works best for you.

The best decision is an informed decision and therefore the purpose of this article is to give you a short, but informative overview of the different marital regimes as well as the advantages and disadvantages of each.

There are basically three options to choose from:

Community of Property

Lets start with Marriage in Community of Property, profit and loss. This means that you did not conclude and register an ante nuptial contract before getting married. You therefore have a joint estate belonging to both spouses in equal undivided shares. 

The advantages of this system are that it affords spouses with greater economic equality. Spouses thus share in each other's wealth both during the marriage and upon dissolution thereof. 

The disadvantages are that the spouses have no protection against the insolvency of the other spouse; therefore you both will be considered insolvent, which could lead to unfavourable restrictions on your legal status. 

This type of regime also restricts your contractual capacity; it's a joint estate so both parties must sign and consent to enter into contracts. 

Think of this type of regime as a partnership where both parties are joint owners of an undivided half share of the estate.¹

Marriage out of Community of Property with Accrual

The second type is Marriage out of Community of Property, profit and loss with the Accrual system. Here each spouse has his or her own separate estate and may deal with the estate as he or she wishes. 

During the subsistence of your marriage it's the same as if married out of community of property. Upon dissolution, that would be death or divorce, the net increase of each estate is added up and divided equally. The spouse with the smaller estate has a claim for half of the difference of the accrual or growth of the bigger estate. ² 

The advantages of this system are protection against insolvency of one of the spouses, and against the attachment of the assets of the other spouse. There is also a fair sharing of profits and losses during the marriage and there is also no restriction on the contractual capacity of the spouses. 

The disadvantages of this system are that both parties need to keep some sort of record and accounting of the finances. It's important to note that after 1 November 1984 accrual automatically applies unless expressly excluded in your contract.³

Marriage out of Community of Property Without Accrual

The third option is Marriage out of Community of Property, profit and loss without the accrual system. This would be a complete separation of property, thus two separate estates. 

The advantages are that you are protected against the insolvency of the other spouse and there are no restrictions on your contractual capacity. The disadvantages are that the parties do not share in each other's wealth and this could be potentially unfair to the spouse with a lower earning capacity.

How long does this process take?

As a general rule of thumb it's advisable that you consult with an attorney a minimum of two weeks before your wedding. The reasons for this being that the attorney drafting your contract must be given sufficient time to take instructions from you as well as draft the contract and have it registered at the Deeds Office before your wedding. 

It's also important to keep in mind that your ante nuptial contract must be registered at the Deeds Office three (3) months after it's signed. Your attorney will provide you with a certificate on the day of signing the contract as proof of execution and this you will have to give to the person solemnizing your marriage.

Poor or inadequate legal advice regarding what option will suit you best when deciding on a Matrimonial Property Regime can create unnecessary conflict and unwanted negative financial implications. 

We at Cornell Horn Attorneys can provide you with sound legal advice and a contract tailored to your individual needs. We also offer a complimentary basic will for yourself and your prospective spouse when you have your antenuptial contract drafted by us.

^{1 Your estate consists of both assets and liabilities
2 Elliot et el, The South African Notary 1995, 6th Edition, Juta, Cape Town. (Hereafter referred to as "Elliot") p. 65
3 Matrimonial Property Act 88 of 1984}