INTRODUCTION
Our firm also provides notorial services as a Notary Public, who is a practicing attorney who is also specifically admitted as a Notary Public and who is by such admittance authorised to attest to certain acts of law, including the authentication of foreign documents for use in South Africa, certain official documents to be use outside South Africa, certain long term lease agreements, servitudes and trust deeds, certain forms of security or session as well as ante-nuptial agreements.
THE DIFFERENT MARRIAGE REGIMES
There are three basic marriage regimes, as follows:
• Marriage in Community of Property.
• Marriage out of Community of Property with the inclusion of the Accrual system.
• Marriage out of Community of Property with the exclusion of the Accrual System
PROCESS OF ENTERING INTO ANC
We find that most couples are well informed about what they want and although we welcome the opportunity to consult with them before hand, many clients prefer to contact us by way of email and submit their personal details, where after we are in the position to prepare all the documents in draft form so that they can review it. Once they are generally happy with the contents of the agreement we arrange for a consultation with our Notary at which occasion final corrections and / or amendments can be made and the documents notarised.
Only a Notary Public may execute an Antenuptial Contract and the contract must be signed in the presence of the Notary Public prior to the marriage. Thereafter the signed original is forwarded to the Deeds Office for registration thereof and in order to make it enforceable against third parties.
WHAT WE NEED
• Copy of Id of both parties; and
• Copy of previous divorce order (if applicable)
MARRIAGE IN COMMUNITY OF PROPERTY
As a general rule all marriages concluded in terms of the Common Law entered into without any antenuptial contract, creates a joint property and thus are in community of property with one joint estate.

At the time of divorce there is one joint estate that must be divided after the nett value (thus the assets and liabilities) has been calculated.
For example, the house, pension fund interest, vehicles, furniture and other investments (be it on the husband or wife or both of their names) then forms one joint estate, which must be divided equally, after the debts have been taken into account. One party does thus not have a right to share in 50% of the house or 50% of the pension or 50% in any specific assets, but 50% in the total nett value of the joint estate.
In terms of this regime there are also specific transactions which require the consent of the other spouse as the transaction has an effect on the joint estate. You do not have two separate estates but one joint estate.
MARRIAGE OUT OF COMMUNITY OF PROPERTY WITH INCLUSION OF THE ACCRUAL SYSTEM
As from 1 November 1984 the accrual system has been introduced, which system in principle creates an in community of property regime postponed with the date of dissolution of the marriage. If parties wish to make use of the accrual system, they must stipulate it in the ante-nuptial contract and declare whether they wish to exclude any specific assets acquired prior to the marriage from the accrual or not.
If either of you have accrued valuable assets before the marriage but it is not specifically excluded, the starting value of your estate is then declared to be nil and those assets are then part of your estate which is taken into consideration for the determination of the accrual.
If an asset or assets are specifically excluded, then the other party cannot lay any claim thereto at the time of divorce. However, the value of that assets must also be declared in the contract as this will then have to be adjusted according to the CPI. The adjusted value will then be deducted from your current gross value of your estate.
Anything that has not been specifically excluded forms part of your own estate and can be taken into consideration for purposes of the accrual.
There are specific Assets which are excluded in terms of the matrimonial Property Act as follows;

During the subsistence of the marriage you can act on your own in regards to your assets, without the necessary consent as required in a marriage in community of property, as you are dealing with your own separate estate. In a marriage in community of property there are certain transactions which require the consent form the other spouse as that transaction affects the joint estate. In this case, you each have your own estates. Your debt is your debt and the other spouse’s debt is theirs. Third parties also do not have a right of recourse against you for any debts of your spouse due to your marriage regime, unlike the case of a marriage in community of property.
Upon the dissolution of the marriage, the net value of the two estates are determined separately, and the party with the higher accrual, must pay out half of the difference in the estate of the person with the lower accrual.

EXAMPLE 1
The parties, when entering into the marriage have no assets that are excluded in terms of the ante-nuptial contract and each part’s beginning value is R 0.00.
At the time of divorce the husband accrued R 1 000 000.00 worth of assets (property, savings, furniture, policies, shares, etc.)
At the time of divorce the wife accrued R 500 000.00 worth of assets (property, savings, furniture, policies, shares, etc.)
After the divorce the parties must be in an equal position. Thus half of the difference of the estates must be paid to the party with the lesser accrual and the value of both estates are then equal after the divorce.
Husband | Wife | |
Nett value of estate beginning of marriage | R 0.00 | R 0.00 |
Nett value of estate at time of divorce | R 1 000 000.00 | R 500 000.00 |
Difference between the values of the two estates | R 500 000.00 | R 500 000.00 |
½ of the difference must be paid to the party with the lesser accrual | R 250 000.00 | R 250 000.00 |
Nett value of estate after marriage | R 750 000.00 | R 750 000.00 |
EXAMPLE 2
Husband’s estate value at beginning of marriage: R 200 000.00 (I.t.o. exclusions in the contract) Adjusted in accordance with the CPI to a current amount of (eg.) = R 400 000.00 Value of Husband’s estate at time of divorce: R 1 000 000.00 Deduct the original excluded amount (adjusted according to CPI) of R 400 000.00 from the R 1 000 000.00 to get the nett value of the Husband’s estate. Husband’s nett value at divorce R 600 000.00 | Wife’s estate value at beginning of marriage: R 50 000.00 (I.t.o. specific exclusions in the contract) Adjusted in accordance with the CPI to a current amount of (eg.) = R 100 000.00 Value of Wife’s estate at time of divorce: R 500 000.00 Deduct the original excluded amount (adjusted according to CPI) of R 100 000.00 from the R 500 000.00 to get the nett value of the Wife’s her estate. Wife’s nett value at divorce R 400 000.00 |
● Difference between the values of the two estates: R 200 000.00 ● ½ of the difference must be paid to the party with the lesser accrual. Thus R 100 000.00 must be paid by the husband to the wife. ● After the divorce husband and wife each has R 500 00.00 |
Husband | Wife | |
Nett value of estate at beginning of marriage (exclusions in terms of the ante-nuptial contract) | R 200 000.00 | R 50 000.00 |
Gross value of estate at time of divorce | R 1 000 000.00 | R 500 000.00 |
Nett value of beginning values adjusted according to the CPI | R 400 000.00 | R 100 000.00 |
Net value of estate at time of divorce | R 600 000.00 | R 400 000.00 |
Difference between the values of the two estates | R 200 000.00 | R 200 000.00 |
½ of the difference must be paid to the party with the lesser accural | R 100 000.00 | R 100 000.00 |
Nett Value of estate after marriage | R 500 000.00 | R 500 000.00 |
MARRIAGE OUT OF COMMUNITY OF PROPERTY WITH EXCLUSION OF THE ACCRUAL SYSTEM
Prior to the commencement of the matrimonial property act on 1 November 1984, parties could marry out of community of property with a properly and duly registered antenuptial contract. This was a rather simple regime in terms whereof each party was able to act independently and profit and loss were obviously excluded. In this case there is juristic equality in that each party has full rights of disposal over his/her own assets.
At the time of divorce neither party share in the wealth or assets of the other party.
Each party’s assets and liabilities remains their own.