For better, for worse, will an ante nuptial contract (ANC) protect you during and after marriage?

In South Africa there are three distinct types of marriages and three laws currently provide for the status of partners in these relationships. These are the Marriage Act (Act 25 of 1961), which provides for civil or religious opposite-sex marriages; the Recognition of Customary Marriages Act (Act 120 of 1998), which provides for the civil registration of marriages solemnised according to the traditions of African customary law; and the Civil Union Act (Act 17 of 2006), which provides for opposite-sex and same-sex civil union, civil marriage or customary marriage.

A person may only be married under one of these laws at any given time and there are certain degrees of relation that are specifically prohibited.

With regard to property systems, when the Civil Union Act legalised same-sex marriages or civil unions in South Africa, amendments to the Matrimonial Property Act were made to ensure that the same principles apply to the registration of a pre-marriage or pre-civil union Contract as would apply to an ANC. Therefore: it is possible to conclude an ANC or pre-marriage contract before a marriage that is concluded in terms of either the Marriage Act or the Civil Union Act.

Whichever form of marriage you plan to conclude it is recommended that you have the discussion with your future partner as marriages in South Africa are automatically in community of property, unless a valid ANC has been entered into before the marriage.

The type of property ownership regime that applies to your marriage is relevant to all significant events in a couple’s life, such as: running a business, obtaining credit, insolvency, death, divorce.

There are three types of marital property system that could apply: the default is ‘in community of property’ and the two alternatives available for those who conclude an ANC are out of community of property, either with a system of accrual or without.

It may be necessary to get legal and financial advice for estate planning preparation and to discuss the marital property arrangement that would best suite your needs.

You may want to check your marital status online: http://www.home-affairs.gov.za/enquiry/marital/status/marital_status.asp