By Dylan Olivier | Candidate Attorney | Mooney Ford Attorneys
INTRODUCTION
The notion of signing an Ante-Nuptial Contract (ANC), more colloquially known as a ‘prenup’, is generally accompanied by negative connotations. When one partner introduces the idea of signing an ANC, it is often perceived as an indication of a lack of trust in the other partner. It can feel like planning for failure before the marriage even begins, suggesting that one or both partners don’t fully believe in the longevity of their relationship.
Additionally, marriage is often idealized as a purely romantic commitment, while an ANC introduces legal and financial considerations, making it seem more like a business transaction than an act of love. This perception is further reinforced when there is a wealth or power imbalance, as prenups are sometimes seen as a way for the financially stronger partner to protect their assets, which can create feelings of inequality and resentment.
However, an ANC isn’t about mistrust, rather, it’s about financial clarity and protection. Akin to a form of insurance, it prepares for the future, not failure. It safeguards both partners from debts, secures assets, and prevents disputes. Far from unromantic, it’s a sign of mutual respect and smart planning.
This article will focus on Four main points. The first three will provide a concise yet informative overview of the three marital regimes which are recognised by South African Civil and Marital Law, and the fourth point will explain why signing an ANC is undoubtedly the best option.
THE MARITAL REGIMES RECOGNISED IN SOUTH AFRICA
- MARRIAGE IN COMMUNITY OF PROPERTY:
In terms of the Law of South Africa, any parties who conclude a valid marriage in the absence of an ante-nuptial agreement, are automatically deemed to be married in Community of Property. But what exactly does this mean?
When married in community of property, the parties to the marriage no longer have their own separate estate (subject to very specific exemptions). Their estates are merged and will constitute one shared estate between the married couple. As romantic as this may sound, insofar as ‘what’s mine is yours’ etc, one needs to remember the potentially detrimental financial implications this could have on the shared estate.
Not only are the assets (including but not limited to immovable property, moveable property and bank accounts), which formed part of the previously separated estates, now collated into the joint estate; the debts and liabilities are too.
A prime example of why concluding a marriage in community of property could have severely detrimental effects on the joint estate can be seen from the effects of the Covid-19 pandemic.
This global pandemic virtually shut down economies globally, with small businesses bearing the brunt of the financial harm. This pandemic shut down trade and business worldwide, virtually over-night. It was almost impossible for small businesses to adequately prepare for the financial set-backs to be caused by the lockdown periods, nor could many recover from it.
As a result, Covid-19 had a severe financial impact on couples married in community of property, as both spouses share all assets and liabilities. If one partner took out loans during the pandemic to cover lost income or keep a business afloat, the other became equally responsible. This meant that even if one spouse was financially stable, they could still be burdened by the other’s debts, making recovery difficult. Many small businesses shut down due to lockdowns, and when business owners defaulted on debts, creditors could seize joint assets, even if the other spouse had no involvement in the business.
The financial strain was worsened by the fact that neither spouse could seek financial relief independently. Debt restructuring, grants, or other financial assistance often required the involvement of both partners, limiting their ability to manage financial challenges separately.
In extreme cases, if one spouse declared bankruptcy, the entire joint estate was affected, often resulting in both partners losing their assets. This lack of financial independence made it harder for couples to navigate the economic downturn, leaving many trapped in debt with no easy way out.
In light of the above, it is evident that there is little to no benefit to being married in community of property, other than the pseudo-romantic aspect of it.
- MARRIAGE OUT OF COMMUNITY OF PROPERTY (WITH ACCRUAL):
In terms of South African law, parties who wish to marry out of community of property must conclude an ANC prior to their wedding. If they elect to include the accrual system, their pre-marital estates remain separate during the marriage, but they share in the financial growth accumulated during the duration of the marriage, held in the accrued joint estate. But what exactly does this mean?
When married out of community of property with accrual, each spouse retains full control over their own pre-marital estate (their separate personal estate which was existent prior to the marriage). This means that any assets, liabilities, or debts they bring into the marriage remain their own, and neither party is responsible for the other’s financial matters resulting from any affairs prior to the marriage. The key principle of this system may be understood simply as: “what I come into the marriage with, I keep; what you come into the marriage with, you keep.”
However, what both parties accumulate together during the marriage is shared equally. This applies to wealth created through joint efforts, such as income earned, investments made together, or property purchased during the marriage.
It is extremely important to note that the same principle applies to debts: any liabilities or debts associated with shared assets, such as a joint loan or mortgage, are also shared because those aspects of the estate are now joint.
At the dissolution of the marriage, the accrual system ensures that both spouses share in the growth of the joint estate. However, it’s not just assets that are divided, but debts as well.
For example, if a couple took out a mortgage during the marriage to purchase a home, the mortgage debt is considered part of the joint estate, and both spouses are equally responsible for it, even if one partner was primarily responsible for making payments.
Similarly, if the couple incurred joint business debts or took out loans for shared ventures, those liabilities must also be shared. This means that, upon divorce or death, the spouse with the smaller accrual may be required to compensate the other to balance out the shared estate, including any debts associated with it.
Whilst marriage out of community of property with accrual offers financial independence and a fair division of assets at the end of the marriage, it does come with drawbacks. One spouse may accumulate significantly more wealth while the other has limited access to it until divorce or death, which can create financial imbalance during the marriage. Additionally, debt related to shared assets is divided, meaning one spouse could be burdened with liabilities they did not directly incur. The system also requires careful financial record-keeping, and disputes over estate values, exclusions like inheritances, and accrual calculations can complicate divorce proceedings.
Given these challenges, the best way to ensure true financial independence and avoid potential disputes is to marry out of community of property without accrual colloquially known as a ‘straight prenup’ or ‘straight ANC’.
- MARRIAGE OUT OF COMMUNITY OF PROPERTY (WITHOUT ACCRUAL):
When the parties to a marriage elect to be married out of community of property, without accrual, aka being married ‘straight ANC’, both party’s estates remain entirely separate, both before and during the marriage. This means that each spouse has full control over their own financial affairs, with no legal claim to the other’s assets or liabilities at any stage of the marriage.
When married ‘straight ANC’, each spouse is regarded as an entirely independent financial entity. Any assets, liabilities, or debts they own before the marriage remain exclusively theirs, and this principle extends to anything acquired thereafter. There is no legal sharing of property, income, or financial growth, regardless of how much is accumulated during the marriage or how each spouse contributes to the household. The key principle of this system is straightforward: what’s mine stays mine, and what’s yours stays yours…always.
Each spouse is solely responsible for their own financial decisions, including any debts they incur. If one party takes out a loan, purchases property, or starts a business, the other spouse bears no legal responsibility for those obligations. Similarly, if one spouse experiences financial hardship, the other is not required to assist or share in any losses. This structure ensures that neither party’s financial status is affected by the other’s choices, offering absolute autonomy over personal assets and liabilities.
At the dissolution of the marriage, whether through divorce or death, there is no division of assets between spouses. Each party simply retains what is in their name, and there is no claim to any portion of the other’s estate. This regime provides the highest degree of financial separation, ensuring that each spouse’s wealth remains entirely their own, both during and after the marriage.
As stated in the introduction of this article, signing an ANC isn’t a matter of distrust but rather a tool for financial transparency and security. Similar to insurance, it’s designed to plan for the future, not anticipate failure. It protects both spouses from financial liabilities, preserves individual assets, and helps avoid conflicts. Rather than being unromantic, it reflects mutual respect and thoughtful decision-making.
WHY SIGNING AN ANTE-NUPTIAL AGREEMENT WITHOUT ACCRUAL IS THE BEST OPTION:
Marrying out of community of property without accrual is the best choice for couples who value true financial independence and wish to avoid potential disputes over assets and liabilities. This marital regime ensures that each spouse maintains full control over their own financial affairs, allowing them to grow their wealth or manage their risks without interference.
By keeping estates separate, it prevents any financial entanglement that could lead to conflict, particularly in cases where one spouse accumulates debt or experiences financial setbacks. Unlike other marital regimes, there is no need for complex calculations, financial disclosures, or disputes over who contributed more; each person simply retains what is theirs, providing clarity and certainty for both parties.
Furthermore, rather than being an unromantic arrangement, an ANC without accrual fosters trust by setting clear expectations from the start. It allows both partners to enter the marriage with confidence, knowing that they are together for love rather than financial security or entitlement. Removing financial dependency from the equation strengthens the foundation of the relationship, as neither spouse is burdened by the other’s financial history, choices, or obligations. It encourages personal accountability and ensures that any wealth built remains with its rightful owner, rather than becoming a point of contention in the future.
Ultimately, a ‘straight ANC’ is not about planning for divorce. It is about ensuring fairness, protecting both partners, and allowing the marriage to thrive on its own merits, free from financial uncertainty.
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