Are you getting married in 2026?
Before you tie the knot, it is important to consider the matrimonial regime which will apply once you tie the knot, as this choice can have important consequences
Types of marriage
There are currently three types of marriages in South Africa: civil marriages, customary marriages, and civil unions, all of which are recognised under South African law. All three marriages are solemnised and registered under the Department of Home Affairs.
Marriages recognised in South Africa are:
Civil Marriages. A marriage concluded between a man and a woman in terms of the Marriage Act, 25 of 1961. Civil marriages are the most common type of marriage in South Africa. This type of marriage is formed under the Marriage Act 25 of 1961, which allows for the solemnization of civil or religious marriages between a man and a woman.
Customary Marriages are done according to indigenous African customary law. It is the second most popular type of marriage in South Africa. The Customary Marriages Act came into force in 1998. This includes polygamous customary marriages.
Civil Unions. The parties to a civil union do not need to be of the same sex. Two persons of opposite sexes can also conclude a civil union. This is also called a “civil partnership”. It was introduced in 2006 as a type of marriage that registers both same-sex partners and opposite-sex partners.
Those are the only marriages which are recognised in law.
Domestic Partnerships (where people have been in a long-term relationship without getting married) are not recognised as a “marriage” in South African law. A person in such a relationship remains largely unprotected in terms of the death of the spouse. Many people are under the misconception that when two people live together for a certain number of years, they will have recourse and protection under the law. They will largely not. Domestic partners are only included as “spouses” in certain legislation.
Types of matrimonial regime
The Matrimonial Property Act, 88 of 1984, regulates the marital regimes applicable in South Africa.
| Matrimonial Regime | Essential Characteristics | Advantages | Disadvantages | Best For |
|---|---|---|---|---|
| In Community of Property | No ANC needed. Both spouses share one joint estate of all assets and liabilities acquired before and during marriage. [cite: 22] | Promotes economic equality; simple automatic sharing. [cite: 22] | Creditors can claim against both; loss of independence; mutual consent required for transactions. [cite: 22] | Couples wanting complete financial unity. [cite: 22] |
| Out of Community (With Accrual) | Requires ANC. Separate estates during marriage, but the “accrual” (growth) is shared upon death or divorce. [cite: 23] | Protects separate estates; shares wealth accumulated together; good for business owners or stay-at-home parents. [cite: 23] | Requires accurate accounting of asset values; complexity in valuation. [cite: 23] | Couples wanting separate estates but shared growth. [cite: 23] |
| Out of Community (Without Accrual) | Requires ANC excluding accrual. No sharing of assets or profits upon dissolution. [cite: 23] | Full financial independence; protection from creditors; simple for second marriages. [cite: 23] | No sharing of assets accumulated during marriage; can disadvantage a spouse who sacrificed their career. [cite: 23] | Partners with significant existing assets or separate business interests. [cite: 23] |
Antenuptial contracts in South Africa
An antenuptial contract is a legal agreement signed by a couple before they get married. The primary purpose of an ANC is to specify the financial rights and responsibilities of each party during the marriage and, more importantly, how assets will be divided if the marriage ends, either by divorce or death.
Without an antenuptial contract, South African law automatically applies the marriage in community of property regime, meaning that all assets and liabilities are shared equally between both spouses.
To create a legally valid antenuptial contract (“ANC”) (also known as a “pre-nup”), there are several important requirements that must be met. There must be:
- A written agreement
- Signed by both parties in the presence of a Notary Public
- Certified by the Notary Public
- Which must be registered at the Deeds Office.
What you need to do before you get married
- Decide on which Matrimonial Regime you want to regulate your marriage.
- If you decide that you wish to get married Out of Community of Property (with or without the application of the accrual principle), you should timeously execute an antenuptial contract before marrying.
- To execute a valid antenuptial contract, the Notary Public typically needs the following information from you:
- Personal details of both parties: Full names, identity numbers, and contact information.
- Marital property regime: Which system you intend to adopt (e.g., out of community of property with or without accrual).
- Details of assets and liabilities: Any assets, properties, or debts to be included or excluded from the contract, including inheritances or donations.
- Specific terms and arrangements: Any special agreements regarding asset management or financial responsibilities during the marriage.
- Legal understanding: Confirmation that both parties understand the contract terms before signing, which the notary certifies.
With this information, the notary will draft, explain, certify, and facilitate registration of the ANC at the Deeds Office.
MORE QUESTIONS?
If you have any questions regarding Marriage, Matrimonial Regimes or Antenuptial Contracts, please speak to us, or your attorney timeously, so that you have the knowledge and time to properly prepare for the financial consequences which will follow.