In South African law, if you get married without having entered into an Antenuptial Contract before the wedding, you are automatically married IN COMMUNITY OF PROPERTY. That means that the assets and liabilities of both parties are combined in one estate, all eggs in one basket, with joint responsibility and decision-making. This is not a bad system, but it has certain risks and limitations, and it is suggested that you consider your options fully before you get married.
To get married OUT OF COMMUNITY OF PROPERTY (with or without the accrual system), you have to enter into an Antenuptial Contract before you actually get married.
If you did not know or just forgot to do this before you got married, and afterwards you want your marital regime to be out of community of property, a court application for a change of your marital regime will be required. This exercise could be quite costly but is an option which your spouse and you can consider.
But what happens if you entered into an Antenuptial Contract before your wedding, and for some reason the contract is not registered in the Deeds Office? It is a legal requirement for an Antenuptial Contract to be registered in the Deeds Office within 3 months of execution thereof by the contracting parties (Sections 86 and 87(1) of Act 47/1937), to be valid against 3rd parties, the public at large. Therefore, when you have signed your Antenuptial Contract with your attorney (who also has to be a Notary), he/she still has to submit this document to the Deeds Office for examination and registration.
In a recent case in the Durban High Court (S v S  3 All SA 85 (KZD)) the parties got divorced 20 years after getting married. At the time of divorce, it was discovered that the Antenuptial Contract that they entered into before their wedding, was never registered in the Deeds Office. Although not valid against third parties, the Judge ruled that between the parties themselves, the contract was valid and binding.
The judge further ruled that, as per the intention of the parties, they were regarded as having been married out of community of property, with no community of profit or loss, but subject to the accrual system. The accrual system was applied to their respective estates as at date of litis contestatio (date when the divorce action was instituted) to prevent one party from frustrating the claim of the other by squandering the assets in his/her estate, or by delaying the proceedings to increase his/her claim.
If you have any questions relating to Antenuptial Contracts or marital regimes in general, email us at firstname.lastname@example.org, or call us on 021-424 3937.
If you intend getting married soon, and you want an Antenuptial Contract drawn up and registered, ask us for a quote by emailing email@example.com
© (Written by Chris Fick & Associates Inc.) No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omission excepted. (E&OE)