Free guide with attorney Zinita Lottering
Marriage and Property in South Africa: What to Know Before You Sign
Getting married in South Africa means choosing a matrimonial property regime, and most couples make that choice under time pressure with very little information. Written with attorney Zinita Lottering, this explains the three options in plain language — and the relationship conversation each one requires.
PDF · 10 pagesFree · no cost, everSumarie Engelbrecht
Sound familiar?
This is for you if
We are getting married and do not understand what an ANC actually does
Someone told us to get an antenuptial contract and we do not know why
I do not want to raise money and property without it sounding like distrust
We have very different assets or debts coming in
The lawyer explained it once and neither of us really followed
Not choosing is still a choice
In South African law, a couple who marry without signing an antenuptial contract are married in community of property by default. That is a substantive legal outcome, not a neutral absence of one: a single joint estate, in which both spouses share assets and, importantly, both share liabilities.
For many couples that is entirely appropriate. For others — anyone running a business, anyone bringing significant debt, anyone with assets they intend to keep separate for family reasons — it carries consequences that only become visible at the worst possible moment. The point is that it should be a decision rather than a default arrived at by not getting around to it.
The accrual system, in ordinary language
Out of community of property with accrual is the option most attorneys recommend, and it works roughly like this: during the marriage each spouse keeps their own estate, and at the end of it — by death or divorce — the growth of each estate over the course of the marriage is compared, and the spouse with the smaller growth has a claim to half the difference.
What this protects against is the scenario where one spouse builds a career and an estate while the other supports the household and finishes with nothing. What it requires is that you declare your starting values honestly at the outset, which is where the relationship conversation actually sits.
How to have this conversation without it feeling like distrust
Raising an antenuptial contract can feel like planning for failure, and plenty of couples avoid the discussion for exactly that reason. It helps to reframe what the document is. It is not a prediction about the marriage; it is a decision about how two estates relate for as long as it lasts, and it governs what happens on death just as much as on divorce.
The practical suggestion in the guide is to separate the two conversations. Talk about what each of you actually wants — protection, fairness, provision for children from a previous relationship — before anyone opens a legal document. Once the underlying wishes are named, the mechanism becomes a technical question for the attorney rather than a referendum on the relationship.
Common questions
Questions people ask
You are automatically married in community of property: one joint estate, with assets and debts shared. It is a valid choice, but it should be a chosen one, because it is difficult and expensive to change after the wedding.
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The harder work is the conversation underneath it — what money means to each of you, and what you each need to feel secure. Premarital counselling is built for that.
This guide is for information and is not a substitute for individual counselling. Written by Sumarie Engelbrecht, HPCSA Registered Counsellor (PRC 0042480).