Antenuptial Contracts in South Africa: What Couples Should Know Before Getting Married
Getting married is an exciting milestone, but it is also an important legal and financial decision. In South Africa, the matrimonial property regime you choose before your wedding will determine how your assets, debts and financial rights are dealt with during the marriage, at divorce, and in some cases, at death.
An antenuptial contract, commonly known as an ANC, is a legal agreement entered into before marriage. It determines whether you will be married in community of property, out of community of property with accrual, or out of community of property without accrual.
Because an ANC can have long-term financial consequences, couples should understand their options before signing.
The three matrimonial property regimes in South Africa
South African couples generally choose between three matrimonial property regimes.
- Marriage in community of property
If a couple gets married without signing an antenuptial contract, they are usually married in community of property.
This means that the spouses share one joint estate. Most assets and debts become part of the joint estate, regardless of which spouse acquired the asset or incurred the debt.
This regime may feel simple and fair because everything is shared equally. However, it can also create financial risk. If one spouse has debt, runs a business, signs surety, or becomes insolvent, the joint estate may be exposed.
For many couples, this lack of financial separation is the reason they choose to sign an ANC.
- Marriage out of community of property with accrual
A marriage out of community of property with accrual is often seen as a balanced option.
Each spouse keeps a separate estate during the marriage. This means each person owns their own assets and is generally responsible for their own debts. However, when the marriage ends through divorce or death, the growth in each spouse’s estate is compared.
The spouse whose estate grew less may have a claim against the spouse whose estate grew more.
This system recognises that spouses contribute to a marriage in different ways. One spouse may contribute financially, while the other may contribute by raising children, managing the household, supporting a business, or making career sacrifices.
The accrual system can therefore offer both financial independence and fairness.
- Marriage out of community of property without accrual
A marriage out of community of property without accrual means that each spouse has a completely separate estate. There is no joint estate and no automatic sharing of growth when the marriage ends.
Each spouse keeps their own assets and liabilities, unless the parties agree otherwise or acquire assets jointly.
This regime may suit couples who want full financial independence, especially where one or both spouses have business interests, significant assets, previous marriages, children from previous relationships, or specific estate planning needs.
However, excluding accrual can have serious consequences. If one spouse sacrifices career growth or contributes indirectly to the household while the other spouse builds wealth, the financially weaker spouse may be left in a vulnerable position.
This issue has become particularly important in light of recent legal developments.
The EB v ER Constitutional Court judgment
In 2023, the Constitutional Court dealt with important questions about fairness in marriages out of community of property without accrual.
The judgment, commonly referred to as EB v ER and KG v Minister of Home Affairs, considered the redistribution remedy in section 7(3) of the Divorce Act. Historically, this remedy was limited to certain marriages concluded before the Matrimonial Property Act came into operation in 1984.
This meant that spouses married out of community of property without accrual after 1984 were generally excluded from asking a court for redistribution of assets, even where the result may have been unfair.
The Constitutional Court found this limitation unconstitutional.
The judgment does not mean that every antenuptial contract will be ignored. It also does not mean that a spouse will automatically receive a share of the other spouse’s assets. Instead, it allows a court, in appropriate circumstances, to consider whether redistribution would be just and equitable.
This is especially relevant for couples who choose to exclude accrual.
The General (Family) Laws Amendment Bill, 2025
The General (Family) Laws Amendment Bill, 2025 seeks to give effect to important Constitutional Court judgments and update aspects of South African family law.
In relation to matrimonial property, the Bill aims to widen the application of the redistribution remedy for marriages out of community of property. This includes marriages where accrual sharing was excluded.
The Bill also deals with circumstances where a marriage out of community of property is dissolved by death, allowing for a possible redistribution claim in certain circumstances.
For couples, the key takeaway is this: antenuptial contracts remain extremely important, but they must be properly understood and carefully drafted.
The law is developing to address unfair outcomes, especially where one spouse may be prejudiced by a strict separation of estates.
Common mistakes couples make with antenuptial contracts
One of the biggest mistakes couples make is leaving the ANC until the last minute. An antenuptial contract must be signed before the marriage and registered correctly. Waiting too long can lead to rushed decisions or unintended consequences.
Another common mistake is assuming that an ANC is a sign of mistrust. In reality, it is a practical legal document that gives both parties clarity and protection.
Couples also often misunderstand the difference between “with accrual” and “without accrual”. This is one of the most important decisions in the ANC process. Excluding accrual should not be done without understanding the long-term consequences.
Other common mistakes include using generic templates, failing to record commencement values properly, not disclosing debts, forgetting about business interests, and not considering how the ANC fits into broader estate planning.
Changing your matrimonial property regime after marriage is possible in certain circumstances, but it is not simple. It may require a court application, notice to creditors and additional legal costs. It is far better to choose the correct regime before getting married.
Why legal advice matters
An antenuptial contract is not just a formality. It can affect your financial position for many years.
An attorney can help you understand the different matrimonial property regimes, decide whether accrual should apply, identify assets that may need to be excluded, record commencement values correctly, and ensure that the ANC is properly drafted and registered.
With recent developments such as the EB v ER Constitutional Court judgment and the General (Family) Laws Amendment Bill, 2025, it is more important than ever for couples to understand the legal consequences of their ANC before signing.
Book a consultation with A Krüss Attorneys
If you are planning to get married, A Krüss Attorneys can assist with professional advice and the drafting and registration of your antenuptial contract.
Our team will explain your options in clear, practical terms and help you choose a matrimonial property regime that suits your circumstances.
Book a consultation with A Krüss Attorneys today and make sure your marriage starts on a legally sound foundation.
This article is for general information purposes only and does not constitute legal advice. Couples should consult an attorney for advice specific to their circumstances.