I’m getting married in the UK. Do I need an antenuptial contract (ANC)?

The “default” position in the UK (also in Zimbabwe and Botswana, to name a few other countries) of being married out of community of property when one gets married without a contract, is diametrically opposed to the South African position, which is that if parties domiciled in South Africa get married without a contract that governs their matrimonial property, they are automatically married in community of property.

Some South Africans are under the false impression that when they get married in a country where that default position apples, they will be married out of community of property, automatically.

In fact, the matrimonial property regime that exists in the marriage is determined by the domicile of the husband at the time that the marriage is solemnised, no matter where the marriage actually takes place; that his domicile (the lex loci domicilii) is the place where he had chosen to permanently reside at the time of the marriage.

If you plan to holiday overseas and return to South Africa after the wedding, if you don’t want to be married in community of property, enter into an ANC.

On the other hand, if you are emigrating to the UK, and plan to settle there permanently after the wedding, the husband’s domicile will change and you will be married out of community.

If you want a marriage out of community, to avoid any doubt, conclude an ANC before you get married.

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