Marriage is not only an emotional commitment - it’s also a financial one. In South Africa, unless couples sign an antenuptial contract, the default marital system is community of property. This means that everything each spouse owns before and during the marriage (with very limited exceptions) falls into a single, joint estate.

But what if you want to protect certain assets - such as a family property, business, or inheritance - before the marriage? And what if a parent, like a mother-in-law, wants to ensure that their child’s spouse cannot claim part of the family’s assets?

The Legal Position: Community of Property

Under community of property:

• All assets and debts owned before and acquired during the marriage fall into the joint estate;
• Both spouses have equal, undivided ownership of the joint estate; and
• Neither spouse can exclude property on their own once married.

The only exceptions are assets specifically excluded in a valid antenuptial contract (ANC), or certain inheritances/donations if the donor stipulated that it should not fall into the joint estate.

Can You Exclude Assets Before Marriage?

Yes - but only through an antenuptial contract signed before the marriage is concluded. An ANC can:

• Establish a marriage out of community of property (with or without accrual), or
• Allow the parties to decide which assets are excluded from the joint estate.

Without an ANC, you cannot unilaterally exclude assets. Once you marry in community of property, all assets automatically merge.

Can Parents Exclude Assets to be Inherited?

This is a common question: “Can my parents exclude certain family assets so that my future spouse can’t claim them if we marry in community of property?”

The answer is no - the parents themselves cannot change the marital property regime. However, they can take steps to protect specific assets:

• Inheritance or donation: If they leave property or money to their child, they can include a clause in their will or donation agreement that expressly excludes that asset from the joint estate.
• Trusts: Family assets placed in a properly managed trust may also be protected, provided the trust is genuine and not used simply to shield assets from a spouse.

What If You’re Already Married in Community of Property?

Changing from community of property to another system is possible, but it requires a joint court application and can be costly. Prevention is always easier than cure.

Why This Matters

Marriage impacts your estate, your family business, and even your children’s inheritance. The only way to control how assets are treated in marriage is through careful planning before the wedding.

How VDM Attorneys Can Help

At VDM Attorneys, we help couples and families structure antenuptial contracts, trusts, and wills that protect their assets and prevent disputes later on. Whether you’re a parent concerned about safeguarding family property, or a couple planning your financial future, our team can guide you through the options.

📩 Contact us today to draft an antenuptial contract or to discuss ways to protect your family assets.

❓ Frequently Asked Questions

Can I protect assets after marriage in community of property?

Yes, but it’s complicated. If you are already married in community of property, you and your spouse must apply to court to change your marital regime. This process is costly and requires consent from creditors. It’s far easier to protect assets before marriage with an antenuptial contract.

Can a parent exclude assets from a child’s marriage?

A parent cannot directly alter a marital property regime. However, they can protect inheritances or donations by stipulating in a will or donation agreement that the asset is excluded from the joint estate. Parents can also use trust structures to safeguard family wealth.

Does an inheritance always form part of the joint estate?

Not necessarily. If the testator (the person leaving the inheritance) specifically states in their will that the inheritance must be excluded, it will not form part of the joint estate. Without this stipulation, it automatically falls into the joint estate in a community of property marriage.

Can I exclude only one asset and not others?

Yes. An antenuptial contract can be tailored to your situation, excluding specific assets (such as a family business or property) while allowing other assets to be shared.

What happens if I don’t have an antenuptial contract?

If you marry without an ANC, the law automatically places you in a community of property marriage. All assets and debts - whether owned before or acquired during the marriage - fall into one joint estate.