When you’re caught up in the romance of wedding planning, discussing something as pragmatic as an antenuptial contract might seem a bit unromantic. However, considering this legal document before you say "I do" is exceedingly important. While it may not be the most thrilling part of your engagement you need to, at the very least, understand the effects of an antenuptial contract on your marriage.   


What is an Antenuptial Contract?

Simply put, an antenuptial contract, often referred to as a "prenup," is a legal agreement between two people planning to get married. This contract determines how assets will be managed during the marriage and in the event of divorce or death. In South Africa, if you do not sign an antenuptial contract before your marriage, you are automatically married in community of property. This means that all assets and debts from before and during the marriage are shared equally. 

By drafting an antenuptial contract before the marriage, you can choose to be married out of community of property.  This means that each person's assets and liabilities remain separate throughout the marriage. This independence can be particularly important for protecting assets acquired before the marriage, as well as for safeguarding each spouse from the debts incurred by the other.


Why is it Important?

Financial Independence

An antenuptial contract allows each partner to maintain their financial independence. You can own assets, incur debt and manage investments independently, without first having to get consent from the other (unless specified in the contract).

Clarity and Protection

The contract provides clear guidelines on how assets and liabilities will be handled in the marriage. This is especially important in cases where one or both parties enter the marriage with significant assets, debts or family responsibilities.

Safeguarding Assets

This agreement can protect your assets from being divided in case of a divorce and can protect one spouse from the debts of the other. Allowing couples to specify how their assets should be managed and protected. An antenuptial agreement provides a strategic safeguard, ensuring that assets are handled according to joint goals and circumstances. This level of clarity and protection provides long-term financial security and independence, regardless of how the marital relationship evolves.


You can tailor your antenuptial contract to fit your specific needs and circumstances through the accrual system. This means that while each party’s existing assets remain separate, any assets accumulated during the marriage are shared. This is often more suitable in marriages where one spouse might forego a career for their family.


Who Should Consider an Antenuptial Contract?

While it's true that anyone stepping into marriage should consider the potential benefits of an antenuptial contract, it's especially crucial for certain individuals and circumstances: 

  • Entrepreneurs and Business Owners: If you own a business, an antenuptial contract can protect your enterprise from becoming part of a joint estate, which could be crucial for its continuity and independence.
  • Individuals with Substantial Assets or Debts: If you are entering a marriage with significant assets like property, investments, or significant debts, an antenuptial contract can clarify what remains a personal liability and what is shared.
  • Those with Children from Previous Relationships: To ensure that certain assets are preserved for children from previous marriages or relationships, an antenuptial contract can specify what offspring will inherit, without claims from a new spouse.
  • Couples Seeking Clarity: Any couple who wants to define their financial rights and responsibilities clearly from the start will benefit from an antenuptial contract. It sets clear financial boundaries and expectations from the start, helping to prevent conflicts in the future.

By setting clear expectations, you build a strong foundation not just for your marriage, but for your future as well. Contact Cawood Attorneys to speak to a qualified attorney who can guide you through the process and help draft a contract that aligns with your circumstances and goals. Don’t wait until it’s too late, ensure peace of mind for the future by getting an agreement in place today.

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