What is a prenuptial agreement?
A prenuptial agreement or ‘prenup’ is a contractual agreement that is set up between two people before getting married. This agreement usually sets out:
- what assets and liabilities (e.g. property and debt) each person has before getting married and what happens with it after marriage
- how property and debt are to be dealt with during a marriage
- what happens to things like property and debt if the couple gets divorced in future or if one of the parties pass away.
What are the options?
Before we dive into why a prenup could be a good idea for you, let’s quickly look at the three marital property options in South Africa:
- In community of property
- Everything you own (and owe) is combined into one estate which you share with your spouse.
- You share everything 50/50, including ownership of all assets before marriage and assets obtained during the marriage. This is also applicable to debts.
- If one of you goes bankrupt, the other person is in trouble too.
- Out of community of property WITHOUT accrual
- What’s yours stays yours and what’s your partner’s stays his/hers.
- No sharing of assets or debts – your finances stay separate.
- This is a good option for protecting personal wealth but it doesn’t consider shared growth in the marriage.
- Out of community of property WITH accrual
- Each spouse keeps their own assets and debts.
- Any new wealth gained during the marriage is shared fairly if you divorce.
- This option protects what you owned before the marriage but ensures fairness in what you build together during your marriage.
Important: If you don’t sign a prenup, on default your marriage will be considered in community of property.
Why does having a prenuptial agreement make sense?
You might think that prenuptial agreements are only for the wealthy, but most couples could benefit from setting up a prenuptial agreement.
- Protect your assets – A prenup keeps your property, investments or business safe.
- Avoid debt nightmares – It is a reality that the average person is likely to have some form of debt. If your partner has a lot of debt or they don’t share the reality of their debt with you, a prenup ensures you’re not legally tied to his/her potential financial burdens.
- Make things clear and fair – Although you don’t want to be thinking about divorce just as you start your marriage, divorce is a possibility. Having a prenup is a way of having difficult conversations and deciding on a plan upfront which means fewer legal headaches if things don’t work out.
- Secure your kids’ inheritance – If you have kids from a previous relationship, a prenup makes sure their inheritance is protected.
How to make your prenup legal
For a prenup to be valid in South Africa, you need to:
✅ sign it in front of a notary public BEFORE getting married
✅ register it at the Deeds Office within three months after the marriage.
If you skip these steps, your marriage will automatically fall under ‘in community of property’ by default.
Final thoughts
Getting a prenup isn’t about planning for divorce – it’s about planning for the future. It’s a way to protect yourself, your partner and everything you’ve worked for. Let Strydom Rabie Inc. guide you through this process by contacting us for efficient, affordable and all-inclusive service.