In today’s society it is of great importance to educate couples who are intending to get married of the different kinds of marriage contracts that can be entered into and what it actually means to be married in community of property or out of community of property.

Antenuptial contracts are used for people that get married out of community of property. The contract can also be referred to as an ANC, prenuptial contract, prenup or marriage contract. The contract is a legally binding contract entered into by a couple before getting married.

An antenuptial contract states how the assets and liabilities of the married couple will be distributed in the event of divorce or death.

Parties who do not enter into an antenuptial contract will automatically be married in community of property. In community of property means that the separate assets and liabilities of the husband and wife will become one estate that is owned equally by both parties. Marriage in community of property is also the cheapest option to enter into because you don’t have to pay for a lawyer to assist you with the drafting of an antenuptial contract, but it is not always the best option.

The two types of antenuptial contracts for consideration are as follows:

1. Out of community of property without the accrual system.

2. Out of community of property with the accrual system.

The registration requirements of the antenuptial contract are as follows:

• The antenuptial contract MUST be signed before the marriage.
• The contract must be attested to by a NOTARY.
• The registration of the contract with the Deeds Office has to be within three months of it being signed.
• Registration by the Deeds Office is usually done within two to three weeks; whereafter it is captured on the Deeds Office Data Base. Delivery of the original contract may take six to eight weeks to the Notary, who will then deliver the contract for the client.

The registration of an antenuptial contract after marriage by a court order is possible under Section 88 of the Deeds Registries Act 47 of 1937. It is then known as a post-nuptial agreement.

The effect that the court order has is retrospective. This means that although the contract is executed and registered after marriage it is effective from the date of marriage.