If you're getting married in South Africa and you don't sign an antenuptial contract before the wedding, the law decides your matrimonial property regime for you — and the default it picks is rarely the one most couples would consciously choose. This guide explains exactly what an antenuptial contract is, the three regimes available to you, the legal framework that governs them, and the practical mistakes that turn a routine document into an expensive court application years later.It is written for engaged couples, parents advising their children, and financial advisors. It is general information about South African law, not legal advice on your specific circumstances.

What is an antenuptial contract?

An antenuptial contract — often shortened to "ANC", and called a "prenup" or "marriage contract" in everyday speech — is a notarial agreement signed by two people who intend to marry, in which they agree on the financial regime that will govern their marriage.Two things make it a particular kind of legal document:

1. It must be notarised. Section 87 of the Deeds Registries Act 47 of 1937 requires that an antenuptial contract be executed before a notary public to be valid against third parties. Your local commissioner of oaths cannot do this — only an admitted notary can. Most attorneys are not also notaries; the qualification is separate.
2. It must be signed before the marriage. This is non-negotiable. A contract signed after the wedding is not an antenuptial contract — it can only be made effective by way of a postnuptial application to the High Court (see below).

Beyond regime choice, the contract typically also lists each spouse's existing assets and liabilities at the start of the marriage, declares commencement values for accrual purposes, and may contain bespoke clauses dealing with specific assets, donations, or pension interests.

What happens if you don't sign one — marriage in community of property

If you marry in South Africa without signing an antenuptial contract before the wedding, your marriage is automatically in community of property by operation of law. This is the default under the Marriage Act 25 of 1961 (and, for civil unions, the Civil Union Act 17 of 2006).In community of property means:

• A single joint estate is created. Everything either spouse owned before the marriage, plus everything either spouse acquires during the marriage, falls into one pool owned 50/50.
• All debts are joint debts. A creditor of one spouse can attach the joint estate.
• Insolvency of one spouse is insolvency of both. If your spouse is sequestrated, the joint estate is sequestrated.
• Major financial decisions — selling immovable property, signing surety, withdrawing from a pension — generally require the written consent of both spouses (Chapter III of the Matrimonial Property Act 88 of 1984).
• On divorce, the joint estate is divided 50/50, regardless of which spouse contributed what.

For a small minority of couples — particularly those with broadly equal earning capacity, no business interests, and a strong preference for legal simplicity — this works. For most modern couples, especially anyone with a business, professional practice, or significant individual assets brought into the marriage, it does not. The single biggest reason couples regret not signing an antenuptial contract is exposure to a spouse's commercial debt or insolvency.

Your three matrimonial property regime choices

Three regimes are available to you in South Africa. Two of them require an antenuptial contract; one is the default.

Since 1984, when the Matrimonial Property Act came into force, out of community of property with accrual is the statutory default for any marriage entered into under an antenuptial contract, unless the contract expressly excludes accrual. Sign an ANC that says nothing about accrual, and accrual applies.For couples married before 1 November 1984, a different regime — out of community without accrual — was the only ANC option, and a transitional process under section 21(1) of the MPA allowed (and still allows) such couples to introduce accrual by application.

The accrual system explained

The accrual system was introduced by the Matrimonial Property Act 88 of 1984 to address a basic unfairness in the older "out of community without accrual" regime: a spouse who built the household and supported the other's career left the marriage with nothing they had not separately earned. Accrual is a middle path between full sharing (community of property) and full separation (without accrual): each spouse keeps their own estate during the marriage, but on dissolution, the growth of those estates is shared.In plain English: if your estate grew by R5 million during the marriage and your spouse's grew by R1 million, the accrual claim is calculated as half the difference (R2 million), payable from the larger estate to the smaller.The technical mechanics, in sections 4 to 10 of the MPA:

• Commencement value — each spouse declares the net value of their estate at the start of the marriage. These values must be set out in the antenuptial contract or in a written statement signed by the parties within six months of the marriage. Values not declared are deemed to be nil (s.6(1)).
• Adjusted commencement value — the declared value is adjusted for inflation using the Consumer Price Index up to the date of dissolution.
• End value — the net value of each spouse's estate at the date of dissolution (divorce or death).
• Accrual — end value minus adjusted commencement value, for each spouse separately.
• Accrual claim — the spouse whose estate showed the smaller accrual has a claim against the other for half the difference.

Excluded by default from the accrual calculation:

• Assets specifically excluded in the antenuptial contract
• Inheritances, legacies and donations received by either spouse during the marriage — together with anything bought or replaced with the proceeds (s.5)
• Non-patrimonial damages (e.g. pain and suffering compensation)

A worked accrual example

Anna and Sipho marry under an antenuptial contract with accrual. Anna's commencement value is R200,000. Sipho's commencement value is R1,500,000.Twenty years later they divorce. Anna's estate is now R8,000,000; Sipho's is R6,000,000. Inflation over that period was 4× (so commencement values multiply by 4 to give adjusted commencement values).

• Anna's adjusted commencement value: R200,000 × 4 = R800,000
• Anna's accrual: R8,000,000 − R800,000 = R7,200,000
• Sipho's adjusted commencement value: R1,500,000 × 4 = R6,000,000
• Sipho's accrual: R6,000,000 − R6,000,000 = R0
• Difference: R7,200,000
• Accrual claim: half the difference = R3,600,000, payable from Anna to Sipho

Note what happened: Sipho started with much more, but Anna's estate grew far more during the marriage, so Anna pays. Accrual rewards growth during the marriage, not pre-existing wealth.

Out of community without accrual — and EB v ER

Under an antenuptial contract that expressly excludes accrual, each spouse's estate remains entirely separate, before, during, and after the marriage. There is no joint estate, no joint liability for the other's debts, and historically, no automatic sharing on divorce.Until 2024, the textbook position was simple: marriages out of community of property without accrual were not subject to the redistribution discretion in section 7(3) of the Divorce Act 70 of 1979. That section allowed a court to order a transfer of assets from one spouse to the other on divorce, but it expressly applied only to marriages out of community without accrual concluded before 1 November 1984.In EB v ER N.O. the Constitutional Court declared that limitation unconstitutional, with the practical effect that section 7(3) redistribution is now potentially available to all marriages out of community without accrual, regardless of the date of the marriage. Verify the current state of the law on SAFLII before relying on this — the legislation may have been amended in response.For practical purposes today: choosing "without accrual" no longer guarantees that a court cannot redistribute assets between you on divorce. It remains the strongest available form of asset separation, but it is no longer absolute.When does "without accrual" still make sense? Typically:

• Both spouses are financially independent professionals with their own established estates
• One or both have already concluded a previous marriage with surviving children whose inheritance must be protected
• One spouse holds business interests where co-ownership exposure would be unworkable
• Both spouses understand and explicitly want the consequences

It is the right choice for the right couple — but increasingly, with the EB v ER discretion now available, the cleaner default for most couples is with accrual.

How an antenuptial contract is drafted, signed and registered

The full process, in order:

1. Consultation and instructions. The drafting attorney takes detailed instructions from both intended spouses — assets, liabilities, business interests, prior marriages, children, pension interests, and any specific clauses the couple want to include. This is the single most important step; many of the mistakes set out below originate in skipping it.
2. Drafting. The attorney prepares the contract — typically a 4–8 page notarial document covering regime choice, accrual or not, commencement values, asset schedules, and any bespoke clauses.
3. Notarial execution before the marriage. Both parties sign the contract in the physical presence of a notary public, who attests to the signatures. This must happen before the wedding ceremony. If the contract is signed after the marriage, it is not an antenuptial contract — see the postnuptial section below.
4. Lodgement at the Deeds Registry. The notary lodges the executed contract at the Deeds Office for registration in terms of section 87 of the Deeds Registries Act 47 of 1937. Registration must occur within three months of the date of signing. If the contract is not registered within that window, it remains binding between the spouses but is not enforceable against third parties — meaning a creditor of one spouse, or a future spouse's heirs, can disregard it.
5. Notary's certificate to the marriage officer. The notary issues a certificate confirming that an antenuptial contract has been executed, which is presented to the marriage officer at the wedding. The marriage officer needs this to mark the marriage register correctly.
6. Delivery of the registered original. Once the Deeds Office has registered the contract, the original is returned to the parties, typically through the notary. Deeds Office turnaround is outside the firm's control and varies; delivery of the registered original generally takes one to three months in total.

Common point of confusion. The contract must be signed before the wedding, not registered before the wedding. Registration follows after, within three months of signing. You can safely get married the day after you sign, even if Deeds Office registration is still in progress.

What if we forgot — postnuptial contracts

If you marry without an antenuptial contract — or with one you now want to change — your only route to alter your matrimonial property regime is a postnuptial application to the High Court under section 21 of the Matrimonial Property Act 88 of 1984.The court will consider:

• Whether sufficient reasons exist to alter the regime
• Whether sufficient notice has been given to creditors and the public (typically by publication in the Government Gazette and a local newspaper)
• Whether the proposed change will prejudice creditors

A successful application typically takes three to six months and costs significantly more than an antenuptial contract — counsel and attorney fees together usually exceed R20,000 even for an unopposed application. For this reason, sorting out the matrimonial regime before the wedding is dramatically cheaper than fixing it afterwards.The most common reasons couples bring section 21 applications:

• Married in community of property by default and now want out (e.g. one spouse is starting a business)
• Married out of community without accrual and now want to introduce accrual (typical for older couples married pre-1984)
• Want to alter specific terms in an existing antenuptial contract

Special situations

Customary marriages

Customary marriages concluded under the Recognition of Customary Marriages Act 120 of 1998 are by default in community of property and of profit and loss. Spouses in a monogamous customary marriage may sign an antenuptial contract before the marriage to opt out, exactly as in a civil marriage. Polygynous customary marriages have additional rules — section 7(6) of the RCMA requires a written contract approved by the High Court regulating the future matrimonial property system before any further customary marriage is contracted. Get specialist advice for polygynous arrangements; the standard ANC template does not cover this.

Civil unions

Couples in a civil union under the Civil Union Act 17 of 2006 are subject to the same matrimonial property regime rules as couples in a civil marriage. The default is in community of property; an antenuptial contract opts you out into one of the out-of-community regimes. Same-sex couples and opposite-sex couples are treated identically.

Foreign spouses and cross-border marriages

For mixed-nationality couples, the lex loci celebrationis (law of the place of marriage) and the spouses' domiciles at the time of marriage determine the matrimonial property regime in the absence of an ANC. If you are South African and your intended spouse is foreign, sign an antenuptial contract in South Africa before the wedding to remove ambiguity. Letters of no impediment, apostille requirements, and Department of Home Affairs documentation often add weeks to the timeline — start early.

Couples already cohabiting

Living together does not, by itself, create any matrimonial property regime in South African law. Cohabitation is regulated, if at all, by a separate cohabitation agreement (also called a life partnership agreement) — not an antenuptial contract. If cohabiting partners later decide to marry, an antenuptial contract is still required before the wedding to opt out of community of property; the existing cohabitation agreement does not transfer.

Recent case law you should know

EB v ER N.O. (Constitutional Court, 2024) — Declared that section 7(3) of the Divorce Act 70 of 1979 is unconstitutional in so far as it limits the redistribution discretion to marriages out of community without accrual concluded before 1 November 1984. The practical effect is that courts may now consider redistribution claims in any out-of-community-without-accrual marriage. Verify the precise citation and any subsequent legislative response on SAFLII before relying on this.ST v CT 2018 (5) SA 479 (SCA) — A leading SCA decision on the calculation of accrual, particularly the treatment of trust assets and the exclusion of donations. Important for high-net-worth ANC drafting.Older line of cases (e.g. Greyling v Erdmann, Reeder v Software Computer Group) — Continue to be cited on the boundary between separate and joint estates and the proper construction of antenuptial contract clauses.This list is not exhaustive. Any drafting attorney should pull current case law on the specific facts of the marriage being contracted.

What the contract can — and cannot — cover

Within the bounds of public policy, parties have substantial freedom to shape their antenuptial contract. Section 6(1) of the MPA gives spouses the right to declare the value of their estates at commencement; sections 8 and 10 deal with adjustments; and the courts have repeatedly upheld bespoke clauses that depart from the statutory defaults.Things an antenuptial contract commonly addresses:

• Choice of regime (the headline)
• Commencement values for accrual purposes
• Specific assets excluded from accrual (heirlooms, family property, pre-existing business interests)
• Pension interests — whether and how a non-member spouse may share in a pension on divorce
• Donations between spouses — how they will be treated for accrual purposes
• The fate of specific items (e.g. a particular property) on death or dissolution
• Choice-of-law clauses for couples with cross-border ties

Things an antenuptial contract cannot lawfully do:

• Override the duty of support between spouses during the marriage
• Pre-determine custody or maintenance of children
• Contract out of constitutional rights
• Defraud existing creditors
• Bind unborn children's inheritance rights in ways prohibited by the law of succession

Common mistakes

In practice, the same handful of mistakes appear repeatedly:

1. Signing after the wedding. The single most expensive error. The remedy is a section 21 High Court application costing many times the original ANC fee.
2. Identical commencement values. Couples who declare both estates at zero, or both at the same arbitrary number, defeat the whole point of accrual. Declare honestly, even if amounts are small or zero.
3. Failing to declare existing assets. Section 6(1) presumes commencement value to be nil where it isn't declared. A spouse who owned a fully paid-off house at commencement and forgot to declare it has effectively donated half its value to the accrual.
4. No professional valuation of business interests. A founder who marries during a startup's pre-revenue phase may believe their shares are worth zero. Five years later, the same shares may be worth R30 million, all of it accrued during the marriage.
5. Generic templates. A six-page template that ignores the specifics of a couple's circumstances (foreign spouse, prior marriage, family business, trust beneficiary) is almost worse than no contract at all — it gives false confidence.
6. Missing the three-month registration window. Practical consequence: enforceable between the spouses but not against third parties. A creditor can ignore an unregistered contract.
7. Marrying in community of property by accident. Couples who intended to sign an ANC, ran out of time, told themselves they would "do it after", and then discovered there is no such thing.

Frequently asked questions

Do I really need a notary public — can my regular attorney do it?
A notary public is the only person legally entitled to attest an antenuptial contract for it to be valid against third parties. Most attorneys are not also notaries — the qualification is a separate step. Always confirm before instructing.

Must the antenuptial contract be registered before our wedding?
No — it must be signed before the wedding. Registration at the Deeds Office happens within three months of signing. You can lawfully marry the day after signing, even if registration is still pending.

Can we change our antenuptial contract later?
Yes, but it requires a postnuptial application to the High Court under section 21 of the Matrimonial Property Act. It is significantly more expensive than the original ANC and takes three to six months. Get the original right.

What is the default if we don't sign anything?
In community of property, by operation of law. One joint estate, joint liability for debts, 50/50 split on divorce, both spouses sequestrated if either is.

Is "with accrual" or "without accrual" better?
Neither is universally better. With accrual is the statutory default and is appropriate for most couples — it shares growth during the marriage while keeping pre-existing estates separate. Without accrual is appropriate for specific situations (significant pre-existing wealth, business interests, prior marriages with children to protect) but, since EB v ER, no longer guarantees that a court cannot redistribute assets on divorce.

What if my spouse is not South African?
Sign an antenuptial contract in South Africa before the marriage to avoid ambiguity about which country's matrimonial property law applies. Letters of no impediment, apostille requirements, and immigration documentation can add weeks — start at least two months before the wedding.

How long before the wedding should we start?
Two to four weeks is comfortable. We have signed and lodged contracts inside a week — even inside 48 hours — but the work involved in proper consultation, asset disclosure, and bespoke drafting is harder to compress than the formalities. Start earlier than you think you need to.

What if we marry overseas?
The matrimonial property regime is generally determined by the husband's domicile at the time of marriage (a rule that is itself under constitutional pressure). A South African antenuptial contract, lodged at a South African Deeds Office, gives certainty regardless of where the wedding ceremony takes place. Talk to us specifically about overseas weddings — there are practical issues with where to sign and lodge.

Can we draft our own antenuptial contract from a template online?
The contract may be valid between you, but it must still be notarially executed and Deeds Office registered to be enforceable against third parties. Most notaries will not attest a contract they did not draft, because they take professional responsibility for it. The cost saving from self-drafting is small compared to the risk of getting something materially wrong.

What does an antenuptial contract cost?
Apply online for current pricing. Our fee is all-inclusive — drafting, notarial attestation, Deeds Office registration, and delivery of the registered original.

Next steps

If you're getting married and you want this done properly, we draft and register antenuptial contracts for couples across South Africa, by correspondence where you are not in Pretoria. The full process — from your first online enquiry to a signed, lodged contract — typically takes one to five working days.Ready to start?

Apply online — start in 10 minutesPhone: 087 001 0733 · Email: admin@louwrens-koen.co.za

Office: 416 Kirkness Street, Arcadia, Pretoria

Author: Louwrens Koen, Practising since 1995. 
Louwrens Koen Attorneys, Conveyancers and Notaries Public, Pretoria.

This guide is general information about South African matrimonial property law. It is not legal advice on your specific circumstances. For advice on your situation, contact us directly.
Last reviewed: 2026-04-26 · 
Next scheduled review: 2026-10-26