Antenuptial contracts for civil unions in South Africa

South Africa’s Civil Union Act came into effect in December 2006, allowing same-sex couples to enter into a legal relationship identical to a marriage. The legal contract is recognised under a totally separate legal act – called a civil union – designed for gay and lesbian couples. It is up to the individual couple to decide whether to call their civil union a civil partnership or a marriage.

The legal implications of a civil partnership made under the Civil Union Act are the same as a marriage made under the Marriage Act. Therefore, any reference to a husband, wife or spouse in any law is deemed to include a civil partner, and the divorce laws for heterosexual married couples are the exact same for gay civil partners.

Same-sex civil partners in South Africa also have the same financial status and benefits, plus equal immigration and adoption rights, to married heterosexual partners.

Seeing as a civil union has the same legal implications as a marriage, this means that you are in a civil union and do not draw up an antenuptial contract, your marriage/union is automatically regarded as being in community of property. Your union is automatically regarded as being in community of property and the provisions of the Matrimonial Property Act of 1984 apply.

If a couple entering into a civil union do not want their matrimonial regime to be in community of property, they must form an antenuptial contract and decide whether they want to marry out of community with accrual, or out of community without accrual.

Out of community of property with accrual

  • Each spouse declares his/her estate’s nominal value at the start of the marriage and keeps their assets and liabilities, unless expressly included.
  • Following divorce, the spouses retain the assets they owned before the marriage but share in any increases made during the marriage.
  • The spouses are not liable for each other’s debts. All that they share is their net assets. Therefore, if one spouse becomes insolvent (bankrupt), the other spouse is protected against creditors.

Out of community of property excluding accrual

  • All assets and liabilities of the spouses are separate, unless otherwise stated in the antenuptial contract.
  • If one spouse has a notably larger amount of assets than the other, this holds no impact upon the other and remains exclusively theirs.
  • The divorce process for an antenuptial contract without accrual is financially quicker and simpler. Any notable increases in wealth or debt by one spouse during the marriage does not affect the other should there be death or divorce.

Read related resource: Antenuptial contract with accrual vs without.