What is an antenuptial contract and do I need one?

An antenuptial contract, usually called an ANC, 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.

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. What is yours stays yours, what is theirs stays theirs, and neither of you has a sharing claim when the marriage ends.

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.

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.

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. 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.

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.

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.