Early in every property transfer the conveyancer asks how the parties are married, and the answer changes the paperwork more than anything about the property does. South African law recognises three matrimonial property regimes, and which one applies decides whose asset the house is, whose signature the sale needs, and what happens to the property at divorce or death.
The default: in community of property
Marry without signing an antenuptial contract and you are married in community of property. The spouses’ assets and debts merge into one joint estate, owned in equal undivided shares. A house bought by either spouse belongs to the joint estate, whichever name appears on the title, and the Deeds Office registers property accordingly.
The practical consequence is the consent requirement. Selling or bonding immovable property in a joint estate needs both spouses’ written consent, so an offer to purchase signed by one spouse alone is a problem waiting at the conveyancer’s desk. The joint estate also means joint exposure: one spouse’s business debts can reach the family home, which is one of the standard reasons couples contract out of the default.
Out of community: the antenuptial contract
Signing an antenuptial contract (ANC) before the wedding keeps the estates separate. Each spouse owns their own assets, is liable for their own debts, and can buy, sell and bond property on their own signature. The ANC is executed before a notary and registered at a Deeds Office, which is why, decades later, a copy can be retrieved when nobody can find the original.
Most modern ANCs include the accrual system: separate estates during the marriage, with the growth of the two estates shared when the marriage ends. Property bought during an accrual marriage remains the buying spouse’s asset for signature purposes, but its value counts in the accrual calculation at divorce or death. An ANC can also exclude accrual entirely, keeping the estates separate in ownership and in growth, or exclude specific assets, commonly a property one spouse brings into the marriage.
Where property transactions go wrong
The regime problems in property deals are predictable. A seller married in community whose spouse has not consented. A divorce settlement drafted around "his" house that the joint estate says is half hers. An estate where the surviving spouse assumed accrual applied and the ANC excluded it. A bond application stalled because the bank needs the ANC and nobody knows which registry holds it. In every case the controlling document is the marriage contract, and in every case it is retrievable.
If you have the registration details, order a Marriage Contract (ANC) copy (R685.00) from any of the 11 registries, delivered by email. If nobody knows where or under what number the ANC was registered, an Instant Person Document Search (R75.00) lists the documents registered against an ID number, which is the standard route to a lost ANC’s reference. For divorce proceedings, deceased estates and other formal processes, a certified ANC copy (R995.00) is issued by the Deeds Office.
Checking before you transact
Two checks remove most of the surprises. Before selling or signing surety, confirm your own regime by reading your ANC rather than remembering it; the accrual and exclusion clauses are exactly the details memory smooths over. And when buying from a married seller, note that the conveyancer will establish the regime and gather the required consents; a seller who cannot say how they are married is a transaction that will move slowly.
None of this is a substitute for legal advice on a specific divorce or estate. It is the document work that makes that advice possible, and it is the part you can do in an afternoon.
Frequently asked questions
We married without an ANC. Can we switch to out of community now?
Changing a matrimonial regime after marriage is possible but requires a joint application to the High Court, which makes the before-the-wedding ANC vastly cheaper. Speak to an attorney about a postnuptial change.
The house is registered in my name only but we married in community. Is it mine?
No. In community of property the house falls in the joint estate regardless of whose name is on the title, and disposing of it needs both spouses’ consent.
How do I find an ANC when we do not know where it was registered?
Run an Instant Person Document Search on the relevant ID number. It returns the registered documents and their references, after which the ANC copy can be ordered from the correct registry.