The Pre-nuptial Agreement


This is a written contract between two people who are about to marry. The contract sets out the respective rights and obligations of each spouse relating to assets that they presently own and will acquire after they get married, and also what should happen to those assets on dissolution of the marriage through death or divorce.

The Importance of a Pre-nuptial Agreement

If parties do not enter into a pre-nuptial agreement, South African law dictates that they are then automatically married in community of property by default. That means that if one of party gets into financial difficulties, his or her creditors can sue the couple’s joint estate. In this way both of them are jointly responsible for the debts of each other. This can prove to be highly problematic.

To avoid joint responsibility, it is advisable to enter into a pre-nuptial agreement. The benefits of doing so include:

  • Divorce settlement procedures: most notably, a pre-nuptial agreement will outline who gets what should there be a divorce.
  • Without a pre-nuptial agreement, relevant divorce laws and the settlement you negotiate will determine how assets are split up.
  • You can keep your assets separate: in doing so you avoid having to fight for your assets in the case of divorce.
  • Inherited property: through a pre-nuptial agreement, stipulations can be made with regards to all inherited property.
  • Dividing debt: pre-nuptial agreements can limit your responsibility with regards to your spouse’s debt during the marriage and also in the event of a divorce.