No Prenup: What “In Community of Property” Means
If you walk down the aisle in South Africa without a signed prenup, the law makes the choice for you. You are automatically married in community of property — a single joint estate where everything is shared, including debts. For most modern couples this is not the regime they would have chosen had they understood it.
This page explains what skipping the prenup actually means, and why most couples decide to put one in place once they see how the default works.
The default regime in one paragraph
The Matrimonial Property Act 88 of 1984 says that any marriage entered into without a prior antenuptial contract is in community of property. Everything you each owned before the wedding, and everything either of you acquires during the marriage, merges into one joint estate. Both spouses own an undivided half-share of the whole. Debts, including debts only one spouse incurred, become joint debts.
The four big consequences
1. One joint estate — you own half of everything, together
Your salary, your spouse’s salary, the car you bought before the wedding, the inheritance you received last year (unless your benefactor’s will specifically excluded it), the bond on the house — all of it sits in one pool. Neither spouse owns anything individually.
2. Joint debts — including debts you didn’t sign for
If your spouse runs up a credit card, signs surety for a struggling business, or is sued for a personal claim, creditors can attach your assets to satisfy that debt. The joint estate is the joint estate, regardless of whose name is on the contract.
3. Spousal consent — for any significant transaction
You cannot sell immovable property, take out major credit, or perform certain other legal acts without your spouse’s written consent. In practice this means buying or selling a house, signing a vehicle finance agreement, or being a director who signs surety for the company — all need spouse sign-off. It frustrates business owners constantly.
4. 50/50 split — on divorce or death
When the marriage ends, the joint estate is divided equally. It does not matter that one spouse earned 80% of the income, or that one spouse brought all the wealth into the marriage. Half goes one way, half goes the other.
Who would actually choose this?
A small minority of couples deliberately want full sharing — usually for symbolic reasons. For everyone else, in community of property creates real exposure:
- If your spouse is sued, you are sued.
- If your spouse goes insolvent, you go insolvent.
- You cannot run a business without dragging your spouse into every signature.
- Your inheritance — unless your will-maker thought to exclude it — ends up shared.
This is why over 80% of couples we draft contracts for choose a prenup with accrual instead. It keeps independence and protection during the marriage, and shares the wealth they actually built together at the end.
Compare your three options before marriage
| What changes | No prenup (in community of property) | Prenup with accrual | Prenup without accrual |
|---|---|---|---|
| Document you sign | Nothing | Notarial prenup (ANC) | Notarial prenup (ANC) |
| Whose assets are whose | One joint estate — 50/50 | Two separate estates | Two separate estates |
| Exposure to spouse’s debt | Fully exposed | Protected | Protected |
| Spouse consent for big decisions? | Yes | No | No |
| Sharing at divorce or death | 50/50 split of the joint estate | Growth shared equally | No sharing |
| Inheritances | Fall into the joint estate unless the will says otherwise | Automatically excluded | Automatically excluded |
| Best suited for | Couples who genuinely want full sharing | Most first marriages | Second marriages, business owners, large existing estates |
Read the full legal commentary on in community of property on antenuptialcontracts.co.za →
Signing a prenup — you do not need to come in
Most of our couples never visit our office. We have built the signing process around power of attorney so that no-one has to take time off work, drive in from Cape Town, or fly back from abroad. The default route is:
- You both complete the prenup intake form.
- We draft the prenup and email it for your review.
- We send each of you a power of attorney. You sign, scan, and email it back; originals follow by post.
- Our notary signs the prenup at our office on your behalf. You do not need to attend.
- We lodge the prenup at the Deeds Office and confirm registration.
The all-inclusive fee is R1,950: drafting, power of attorney, notary, and Deeds Office registration. If you would rather sign in person at our Pretoria office, that option is open too.
“We’re already married — can we still sign a prenup?”
Not directly. A prenup must be signed before the wedding. Once you are married, changing your matrimonial regime requires a section 21 High Court application under the Matrimonial Property Act. Both spouses must consent, no creditor may be prejudiced, and the court must be satisfied that the change is justified. It is doable, but it is significantly more time-consuming and expensive than signing a prenup before the wedding.
If you have a wedding date, the cheaper, faster option is always to sign a prenup beforehand.
Frequently asked questions
How long before the wedding do we need to sign?
The prenup must be signed before the marriage, and registered at the Deeds Office within three months of signing. Four to six weeks before the wedding is comfortable. Same-week signings are possible in genuine urgency.
What does it cost to sign a prenup?
R1,950 all-inclusive at Louwrens Koen Attorneys — drafting, notary attendance, and Deeds Office registration are all covered. There are no surprises.
If we live abroad or in different cities, can we still sign?
Yes. We routinely use power-of-attorney signings for couples where one or both parties are out of the country. We send the contract, you sign before a local notary or at a South African embassy, and we register it here.
Does in community of property protect us if one of us dies?
Half of the joint estate becomes the surviving spouse’s automatically; the deceased’s half flows according to their will. This sounds protective but is also why creditors of the deceased can claim against half of your assets too.
Sign a prenup before your wedding
R1,950 all-inclusive. Drafting, notary, and Deeds Office registration. Nationwide service from Louwrens Koen Attorneys.