What is an antenuptial contract and do I need one?

An antenuptial contract, usually called an ANC, and often a prenup in everyday speech, is a written agreement you and your future spouse sign before the wedding that decides how your property and debts are treated during the marriage and how they are divided if the marriage ends. It is signed in front of a notary, who is an attorney with an extra qualification, and it is registered at the Deeds Office.

This guide is part of our Marriage in South Africa: civil, customary, religious and civil unions explained, which links every guide on the topic.

Do you need one? Not legally. You can marry without one. But if you want anything other than a fully shared estate, then yes, you need one, and you need it before the wedding day. This is one of the few decisions in family law that becomes very hard to undo later.

The three regimes

The Matrimonial Property Act 88 of 1984 gives South Africa three options.

In community of property. This is the default. If you sign nothing, this is what you get. Your two estates become one joint estate that you own in equal undivided shares. Assets you brought into the marriage fall into it, and so do debts. Both of you generally share the profit and both of you carry the loss. Certain significant transactions, such as selling immovable property or binding yourself as surety, need the other spouse's consent. On divorce, the joint estate is usually divided equally.

Out of community of property with accrual. You keep separate estates during the marriage. Each of you owns what is in your own name, and each of you carries your own debts. When the marriage ends, whether by divorce or death, you compare how much each estate has grown. The spouse whose estate grew less has a claim against the other for half of the difference. That claim is the accrual.

Out of community of property without accrual. Complete separation during the marriage. What is yours stays yours, what is theirs stays theirs, and neither of you has an automatic sharing claim when the marriage ends.

That does not always mean nothing is shared on divorce. Section 7(3) of the Divorce Act 70 of 1979 lets a divorce court order one spouse to transfer assets to the other, which is called a redistribution order. It used to apply only to marriages without accrual concluded before 1 November 1984. In EB v ER; KG v Minister of Home Affairs [2023] ZACC 32, decided on 10 October 2023, the Constitutional Court found that cut-off date unconstitutional and extended the claim to marriages without accrual concluded after that date, as an interim measure until Parliament amends the law. Then, in GD v Minister of Home Affairs [2026] ZACC 39, decided on 9 October 2026, the Court confirmed that section 7(7)(c) of the Divorce Act, which had kept pension interests out of these claims, is invalid with immediate effect. A court may now take a spouse's pension interest into account as well, although that judgment does not reopen divorces already finalised.

Redistribution is discretionary, not automatic. The spouse asking for it must show that they contributed, directly or indirectly, to the maintenance or growth of the other spouse's estate during the marriage, for example by running the home or raising the children, and the court orders only what it considers just and equitable. It is also not available if the two of you have agreed in your divorce on how your assets are to be divided.

What accrual actually means in practice

Accrual is the middle path and it is what most couples who sign an ANC choose. It protects each of you from the other's debts while still sharing the growth built up during the marriage. The guide to how accrual is calculated goes through the formula step by step.

Two details matter.

First, accrual applies automatically. If your antenuptial contract says nothing about accrual, the accrual system applies. To exclude it, the contract has to say so expressly. So "out of community of property" on its own does not mean total separation.

Second, the starting point is negotiable. The contract can record a commencement value for each estate, which is what you are each worth on the day you marry. That amount is taken off before the growth is compared, so assets you already had are protected. If you leave the commencement value out, it is treated as nil, and everything you own becomes part of the growth to be shared.

Certain things fall outside the accrual, including inheritances, donations you receive from someone other than your spouse, and damages awarded for pain and suffering. You can also list specific assets in the contract that are to be excluded.

A worked example of accrual

This example is illustrative. Take a made-up couple, Thandi and Pieter. The figures are round numbers chosen to show the mechanics, not a prediction of any real case, and they ignore inflation adjustments that a real calculation would include.

When they marry, Thandi owns a flat and savings and records a commencement value of R400 000. Pieter has a car and student debt and records a commencement value of nil. They marry out of community of property with accrual.

Fifteen years later they divorce. Thandi's estate is now worth R1 400 000, so it has grown by R1 000 000. Pieter's estate is worth R600 000, so it has grown by R600 000. The difference in growth is R400 000. Pieter, whose estate grew less, has an accrual claim for half of that difference, which is R200 000.

Notice three things. Thandi's flat is not shared as an asset. Only its growth counts. Pieter's claim is for money, not for a share of the flat itself. And if Thandi had inherited R300 000 from her mother during the marriage, that amount would be left out of her estate for the calculation, because inheritances are excluded. You can run your own figures through our accrual calculator.

Now compare the other two regimes. In community of property, everything the two of them own would sit in one joint estate worth R2 000 000, usually divided equally. Without accrual, each keeps what is in their own name and Pieter has no accrual claim. He could still ask the divorce court for a redistribution order, but he would have to prove that he contributed to the growth of Thandi's estate, and the amount, if any, would be whatever the court considers just and equitable.

Which regime suits which couple

There is no correct answer, only a fit. Broadly:

• Community of property suits couples with similar assets and incomes, no business exposure and a preference for simplicity. The risk is that one spouse's debts become both spouses' debts.
• Accrual suits most couples where one runs a business, one earns much more, or one is bringing meaningful assets in. It shields each estate from the other's creditors but still shares what the marriage builds.
• No accrual suits couples marrying later in life with established estates, children from earlier relationships, or a clear wish to keep finances completely separate. Be honest that this leaves a spouse who gives up work to raise children with no automatic sharing claim. Their only route is to ask a divorce court for a discretionary redistribution order, which is uncertain and expensive to argue, so a prenup that excludes accrual does not guarantee a completely clean split either.

If you are unsure, accrual with carefully recorded commencement values is the option most notaries will start from.

Why signing before the wedding matters so much

An ANC has to be executed before the marriage. It also has to be attested by a notary and registered in a deeds registry, generally within three months of signing. Sign it after the ceremony and it does not work, no matter what the two of you intended.

If you do not sign one, you are married in community of property, and that is what applies when the marriage ends. The guide to marrying without an antenuptial contract explains what that means for the joint estate. This catches people out often, especially where one spouse runs a business. In community of property, a creditor of that business can look to the joint estate, which includes the other spouse's share.

A realistic timeline

Contact a notary at least six weeks before the wedding. The first meeting usually takes an hour. Drafting and a round of changes typically take one to two weeks. Signing takes an afternoon, and you will each need your identity document. The notary then lodges the contract at the Deeds Office for registration, which happens after the wedding and takes several weeks. You do not need to wait for registration before you marry; you only need to have signed before the ceremony.

What to bring to the notary

• both identity documents
• your wedding date and the details of the marriage officer
• a list of what each of you owns, with rough values, including property, vehicles, savings, retirement funds and shares in a business
• a list of what each of you owes
• proof of value where you can get it, such as a municipal valuation, a bank statement or a fund statement
• any assets you want expressly excluded from accrual

Common mistakes

Leaving the commencement values out. If nothing is recorded, your starting estate is treated as nil and everything you brought in is shared as growth. This is the most expensive mistake on this page and it is entirely avoidable.

Assuming "out of community" means no sharing. It does not. Unless the contract expressly excludes accrual, accrual applies.

Signing after the ceremony. A contract signed the day after the wedding, however well meant, does not change the regime. You are married in community of property and would need a High Court application to change that.

Never checking registration. The notary lodges the contract, but you should ask for confirmation that it has been registered and keep a copy. A contract that was signed but never registered creates real problems later.

Not reading it. It is a short document. Read every clause, and ask what happens on death as well as on divorce, because the regime governs both.

What if we are already married?

You are not stuck, but it is a court application, not a form. Both spouses have to apply jointly to the High Court for permission to change the matrimonial property regime. You must show sound reasons for the change, give notice to your creditors so nobody is prejudiced, and satisfy the court that no one loses out. The order is then registered.

It works, and people do it. It is simply far more expensive and slower than an ANC before the wedding, and the court may refuse. The guide to changing your matrimonial property regime covers the requirements and the notices.

Customary and religious marriages

A monogamous customary marriage under the Recognition of Customary Marriages Act 120 of 1998 is in community of property unless the spouses sign an antenuptial contract excluding it. The same three regimes are available.

Where there is more than one customary spouse, the position is different. A court has to approve a written contract regulating the future matrimonial property system before a further marriage is entered into. If this applies to you, get advice specifically about it rather than relying on a standard ANC.

Religious marriages that are not also registered as civil or customary marriages sit in a more complicated position. Speak to an attorney about what protections you actually have.

Practical points before you sign

Both of you should understand the contract. A notary can explain the clauses, but the notary is drafting a contract for both of you, so if the estates are very unequal it is sensible for each of you to take separate advice.

List your assets honestly and record realistic commencement values, with proof where you can. A commencement value nobody can support is worth little when it is challenged years later.

Read the contract before the wedding week, not during it. The pressure of a looming ceremony is the worst possible setting for a financial decision that lasts as long as the marriage does.

If the marriage does end, the regime you chose here is the starting point for everything, including who gets the house and what the divorce costs.