What If You Don’t Sign an Antenuptial Contract Before Marriage?

For many couples caught up in the excitement of wedding planning, legal contracts are the last thing on their minds. But in South Africa, if you don’t sign an antenuptial contract before saying “I do,” your marriage will automatically fall under a legal regime that might not best suit your circumstances. This article explores what happens when you don’t sign an antenuptial contract, and why it’s so important to understand the legal and financial implications upfront.

Why Choose an Antenuptial Contract?

In terms of our law, if no antenuptial contract is signed and registered before the date of marriage, you are automatically married in community of property. This is the default marital regime under the Marriage Act 25 of 1961 and the Matrimonial Property Act 88 of 1984.

Being married in community of property means that all assets and debts, whether acquired before or during the marriage, form part of a joint estate. This includes everything from property and investments to personal loans and business debts. Each spouse owns an undivided half share of the joint estate, and the consent of both parties is required for certain transactions, such as buying or selling property or taking on credit.

While this arrangement may suit couples with equal financial standing and shared liabilities, it can create significant complications if one spouse is financially irresponsible, already in debt, or owns a business.

Can You Change It After Marriage?

It is possible to change your matrimonial property regime after the wedding, but it’s not as simple as signing a contract. According to Section 21(1) of the Matrimonial Property Act, spouses may apply jointly to the High Court for permission to change their marital regime from in community of property to out of community of property (with or without accrual). However, this is a court-driven process with specific legal and procedural requirements.

The steps typically include:

• A joint application to the High Court stating the reasons for the change.
  
• Proof that creditors will not be prejudiced by the change.
  
• Publication of a notice in the Government Gazette and local newspapers to inform interested parties (including creditors).
  
• Submission of supporting documents such as a draft postnuptial contract and financial statements.
  

If the court is satisfied that the change is in good faith, that both spouses agree, and that creditors are not adversely affected, it may grant the order.

This process can be costly and time-consuming and typically requires the assistance of an experienced attorney. It’s far more efficient and economical to sign an antenuptial contract before marriage when no court intervention is required.

Scenarios Where an Antenuptial Contract Could Be Important

1. If You Own a Business 

If you own a business and get married in community of property, your spouse automatically acquires a 50% share in your business (unless it’s a separate juristic entity and you’ve structured it accordingly). On top of that, your joint estate becomes liable for business debts, even if your spouse had no involvement.

2. Debt Accumulation

If one spouse incurs substantial debt, the other becomes equally liable for that debt. In a marriage in community of property, creditors can attach any asset in the joint estate to satisfy debts, including those incurred solely by one partner. This can be particularly dangerous in cases of insolvency. If one spouse is sequestrated, the other’s assets may also be sold to settle debts.

3. Divorce Settlements

Upon divorce, the joint estate must be divided equally, regardless of how much each partner contributed. This can be devastating for individuals who entered the marriage with substantial assets or who were the primary earners. The court has limited discretion to deviate from this equal split.

4. Estate Planning and Inheritance

Marrying without an antenuptial contract can complicate estate planning. This arrangement can make it difficult to divide assets clearly or protect specific interests in a will. In the event of one spouse’s death, the surviving spouse automatically becomes entitled to half of the joint estate, regardless of the wishes expressed in the deceased’s will. This may unintentionally affect how the remaining half of the estate is distributed, potentially limiting the ability to provide for other beneficiaries.

Planning for The Future

While it’s entirely possible to change your marital regime after marriage, it’s a complex, costly and public process. Signing an antenuptial contract before marriage is far simpler and provides clarity from day one. 

At Cawood Attorneys, we specialise in drafting custom antenuptial contracts that suit your personal and financial needs. Whether you’re getting married for the first time or protecting your estate for the next generation, our team is here to help you plan wisely and protect what matters most.