February is the month of love, with Valentine’s Day proposals, engagement announcements and wedding planning taking centre stage. While romance is rightly celebrated, family law expert Susan Abro of Susan Abro Attorney urges newly engaged couples to pause and consider an equally important step before saying “I do”, namely planning an antenuptial contract.
“Engagements are an exciting time, but marriage is both an emotional and legal commitment,” says Abro. “Too often, couples avoid conversations about finances and marital regimes, which can have serious consequences later. An antenuptial contract is not about planning for divorce, it is about clarity, protection and informed decision-making.”
Understanding marriage regimes in South Africa
An antenuptial contract is a legally binding and registered agreement signed before marriage that regulates the financial consequences of a marriage upon death or divorce. In South Africa, couples must choose whether they are married in community of property or out of community of property, either with or without the accrual system.
Abro explains that recent legal developments make these decisions even more important. “South Africa is in the process of implementing a new Marriage Act, which will treat all marriages equally, whether they are concluded under civil, customary or religious law. Regardless of the ceremony, couples still need to decide on their matrimonial property regime, and an antenuptial contract can be entered into for any type of marriage, provided it is signed before the wedding.”
If couples marry out of community of property including the accrual system, whatever the parties accrue during the course of the marriage is shared. If the accrual is excluded, each spouse retains their own estate. However, this option has been significantly impacted by a Constitutional Court ruling.
The Constitutional Court decision determined that the court hearing the divorce, where parties are married with the exclusion of the accrual may make an order that there be a redistribution of the parties estates based on principles of equity.
“A common misconception is that this judgment creates an automatic right to asset sharing,” says Abro. “It does not. The parties will need to prove their right to a distribution. This development has far-reaching consequences and reinforces the importance of proper legal advice before marriage. “Couples need to understand exactly what they are agreeing to and how the law may apply to them in the future,” Abro adds.
Why legal advice matters
Abro strongly advises couples to consult a family law specialist when considering marriage and drafting an antenuptial contract. “Family lawyers are best equipped to explain how the different systems work and to tailor an agreement to suit a couple’s specific needs. You may wish to exclude certain assets, include others, or make provision for particular circumstances. These contracts are not one-size-fits-all.”
An antenuptial contract must be signed before a notary public. “If necessary, a special power of attorney can be signed, allowing the family Lawyer to appear before the notary,” says Abro. “What matters most is that the contract is concluded before the marriage takes place.”
If couples marry without an antenuptial contract then they are automatically married in Community of Property, which means that there is a joint estate which will be liable to attachment by creditors of either party.
Planning for love and life
With engagements peaking during February, Abro encourages couples to have these conversations early. “Do not leave your antenuptial contract until days before the wedding, or worse, ignore it altogether. Taking the time to plan properly is an act of care and responsibility towards each other.”
So, if you are saying “yes” this Valentine’s Day, remember that true commitment includes open conversations, informed choices and a solid legal foundation for your future together.