What Is an Antenuptial (Prenuptial) Contract?
An antenuptial contract (often called a "prenup") is a legal agreement signed by two people before they get married. In South Africa, it serves to change the default legal consequences that would otherwise apply to their marriage under the Marriage Act and Matrimonial Property Act.
Without an antenuptial contract, a couple is automatically married in community of property, meaning all their assets and debts are merged into a single joint estate. This can have far-reaching consequences — not only during the marriage, but particularly in the event of divorce or death.
By signing an antenuptial contract, couples can choose a different marital regime:
- Out of community of property without accrual, where each spouse's assets and debts remain completely separate; or
- Out of community of property with accrual, where spouses share in the growth of their estates during the marriage but keep their own pre-marital assets separate.
An antenuptial contract must be signed before the marriage takes place and must be properly registered at the Deeds Office within three months. If it is not signed in time, the couple will be considered married in community of property by default, regardless of their intentions.
In short, an antenuptial contract is not just a formality — it is an essential legal tool that allows couples to plan their financial futures clearly and fairly.
What Happens If You Get Married Without an Antenuptial Contract?
In South Africa, if you get married without signing an antenuptial contract, the law automatically considers your marriage to be in community of property. This means that from the moment you say "I do," you and your spouse share one joint estate — including all assets and all debts, whether they were acquired before or during the marriage.
While this arrangement might seem fair in theory, it often creates significant legal and financial complications in practice. Some of the key consequences include:
Shared Liability for Debt:
If your spouse incurs debts, even without your knowledge or consent, creditors can claim against the joint estate — including your personal assets.
Loss of Financial Independence:
Both partners must agree before major financial decisions can be made, such as selling a house or taking out a large loan. Without agreement, these transactions cannot happen.
Complications During Divorce:
Upon divorce, the entire joint estate must be divided equally, regardless of who contributed more financially or who was responsible for generating or protecting the assets.
Risk to Pre-Marital Assets:
Assets you owned before the marriage automatically become part of the joint estate. There is no protection for family heirlooms, businesses, investments, or other personal assets unless you specifically protect them through an antenuptial contract.
Limited Estate Planning Flexibility:
The joint estate can complicate wills and inheritance planning, particularly if there are children from previous relationships or complex family dynamics.
In short, marrying without an antenuptial contract leaves you exposed to risks that could otherwise be avoided. It ties your financial future closely to your spouse's actions — for better or worse — with little room to create tailored financial protections.
What Does an Antenuptial Contract Do?
An antenuptial contract fundamentally changes the default legal position that applies to a marriage. Instead of sharing a single joint estate, it allows each spouse to maintain financial independence and clearly define how assets and debts will be treated during the marriage and upon its dissolution.
When you sign an antenuptial contract, your marriage is automatically considered to be out of community of property. This means:
Separate Estates:
Each spouse retains ownership of their own assets and is individually responsible for their own debts.
Protection Against Each Other’s Creditors:
If one spouse becomes financially liable — for example, through business debts or personal loans — creditors cannot claim against the other spouse’s assets.
Tailored Financial Arrangements:
Couples can decide whether they want to share in the growth of their estates (through the accrual system) or keep everything completely separate. This flexibility allows couples to design a financial structure that suits their specific circumstances.
Simplified Divorce Proceedings:
In the unfortunate event of a divorce, the process of dividing assets is typically much simpler and less contentious when an antenuptial contract is in place. Each party walks away with what is legally theirs, according to the terms of the contract.
Protection of Pre-Marital and Family Assets:
Assets acquired before the marriage, family inheritances, or interests in businesses can remain securely within an individual estate, offering peace of mind for both spouses.
By signing an antenuptial contract, couples take proactive steps to clarify expectations, prevent misunderstandings, and reduce the risk of costly disputes in the future. It is an essential financial planning tool, especially in today’s complex and fast-changing world.
Antenuptial Contract With Accrual vs Without Accrual
When entering into an antenuptial contract, couples must decide whether they want the accrual system to apply. This decision has a significant impact on how assets are handled during the marriage and divided if the marriage ends.
What Is the Accrual System?
The accrual system is a legal mechanism that allows each spouse to retain full ownership of their own estate during the marriage, while still sharing fairly in the growth of each other's estates if the marriage ends.
In simple terms:
- You each keep what you had before the marriage.
- You share in the value your estates grew by during the marriage.
This system is designed to balance independence with fairness — particularly where one spouse sacrifices career growth to support the family.
- Each spouse maintains separate ownership of their assets during the marriage.
- Only the growth in the value of each estate (the accrual) is shared if the marriage ends.
- Assets that were owned before the marriage or specifically excluded in the contract (e.g., inheritances) are not included in the accrual calculation.
- Encourages fairness, particularly if one spouse earns significantly less or pauses their career to care for the home or children.
Example:
If one spouse's estate grew by R1 million and the other’s by R500,000, the spouse with the greater accrual compensates the other to ensure an equitable division.
- Complete separation of assets and debts.
- Each spouse owns and manages their estate independently, with no claim against the other’s growth or assets upon divorce.
- Suitable for situations where both spouses are financially independent, have significant pre-marital wealth, or simply want absolute separation without sharing future growth.
Example:
If one spouse builds a business worth millions during the marriage, the other spouse has no claim to any portion of it, and vice versa.
Key Considerations
- The with accrual option tends to be the preferred choice for couples seeking a balance of independence and fairness.
- The without accrual option may be preferable where protecting significant personal assets or inherited wealth is a priority.
Choosing between these two options requires careful thought — and ideally, the advice of an attorney who understands your personal and financial goals.
Why Having an Antenuptial Contract Matters
An antenuptial contract is far more than just a legal formality — it is a proactive way to protect your future, safeguard your assets, and preserve financial clarity throughout your marriage.
Here’s why having an antenuptial contract is so important:
Protects Assets Built Before Marriage
Without an antenuptial contract, any property you bring into the marriage automatically becomes part of the joint estate. An antenuptial contract ensures that your pre-marital assets — such as a home, investments, savings, or a family business — remain solely yours, unless you choose otherwise.
Shields You from Your Spouse’s Debts
If your spouse accumulates debts, defaults on loans, or faces business failure, creditors can pursue the joint estate in an in-community marriage. With an antenuptial contract, your personal assets are protected, and you are not held liable for debts that are not your own.
Enables Fair, Clear Financial Arrangements
An antenuptial contract sets clear expectations around how finances will be managed. Whether you choose with or without accrual, both partners know where they stand — promoting transparency, trust, and security.
Reduces Conflict and Legal Costs During Divorce
Divorces involving joint estates can quickly become complicated, emotional, and costly. When there is an antenuptial contract in place, the division of property follows a clear legal structure, reducing the chances of drawn-out disputes and expensive litigation.
Provides Certainty and Peace of Mind
Knowing that you and your partner have thoughtfully and fairly planned for your future can strengthen your relationship. An antenuptial contract creates certainty, allowing you to focus on building a life together without hidden financial risks or misunderstandings.
Common Misconceptions About Antenuptial Contracts
Despite their clear legal and financial benefits, antenuptial contracts are often misunderstood. Many couples hesitate to sign one because of outdated myths or emotional concerns. Let's clear up some of the most common misconceptions:
"Antenuptial Contracts Are Only for the Wealthy"
Many people believe that antenuptial contracts are necessary only for high-net-worth individuals or couples with large estates. In reality, they are just as important for couples of modest means. Protecting your personal assets, shielding yourself from debt, and ensuring fairness are critical considerations no matter what your income level is.
"Signing One Means I Don't Trust My Partner"
An antenuptial contract is not a prediction that the marriage will fail. It is a mature, responsible step that recognises the realities of life. Relationships involve both emotional and financial aspects — and planning for both demonstrates thoughtfulness, not mistrust.
Just as you would buy insurance without expecting disaster, you sign an antenuptial contract not because you expect divorce, but because you value clarity, fairness, and security.
"We Can Always Sort It Out Later"
This is a dangerous misconception. Under South African law, an antenuptial contract must be signed before the marriage ceremony. Once you are married, it is too late to simply “add” a contract — you would then need to apply to the High Court for a postnuptial change, which is complex, time-consuming, costly, and not guaranteed to succeed.
Planning ahead is not just advisable — it is legally necessary.
How to Get an Antenuptial Contract Drafted and Registered
Setting up an antenuptial contract in South Africa is a straightforward process — but it must be done correctly and on time to be legally valid.
Here’s what you need to know about the process:
Step 1: Consult a Qualified Attorney
Only an attorney who is also a notary public can draft and notarise an antenuptial contract. During your consultation, the attorney will explain your options (with accrual or without) and help you choose the arrangement that best suits your circumstances.
It’s important to be open and thorough during this consultation, as your attorney will tailor the contract to reflect your specific needs and protect your interests.
Step 2: Draft and Review the Contract
Your attorney will prepare the contract based on your agreed terms. Both partners must carefully review the document, making sure they understand all its clauses and implications.
If there are any uncertainties, this is the time to ask questions and make adjustments before signing.
Step 3: Sign Before the Marriage Ceremony
The antenuptial contract must be signed before the marriage takes place. Both partners and the notary must be present for the signing. If it is not signed before the wedding, the couple will automatically be married in community of property, and changing it later will require a costly and complicated High Court application.
Timing is critical — it is advisable to finalise and sign the contract well ahead of the wedding day to avoid last-minute stress.
Step 4: Register the Contract with the Deeds Office
After the marriage, the signed antenuptial contract must be registered at a local Deeds Office within three months of signature.
The notary public usually handles this process, ensuring that the contract is formally recorded and legally enforceable.
If the contract is not registered properly, it may not have full legal effect, which can cause significant issues later.
How Much Does an Antenuptial Contract Cost?
The cost of an antenuptial contract in South Africa typically includes two components: the professional fee for the attorney drafting and notarising the contract, and the Deeds Office registration fee.
While fees can vary depending on the attorney and the complexity of the agreement, most standard antenuptial contracts are reasonably affordable. As a general guide:
- Professional fees for drafting and notarising the contract are typically charged as a fixed amount rather than hourly.
- Deeds Office fees are set by regulation and are relatively modest.
Some attorneys may also offer consultations to help you understand your options before drafting the agreement. It’s important to ask upfront what the full costs will be so that there are no surprises.
When considering costs, it’s vital to remember that an antenuptial contract is a long-term legal safeguard. Investing in professional, experienced legal assistance ensures that the contract is properly drafted, compliant with the law, and fully protects your interests — avoiding far greater expenses and complications down the line.
Why You Need an Attorney to Draft Your Antenuptial Contract
An antenuptial contract is a powerful legal document — but it must meet very specific legal requirements to be valid and enforceable. That’s why it is essential to have it drafted by a qualified attorney who is also admitted as a notary public.
Here’s why professional legal assistance is critical:
Compliance with Legal Formalities
The drafting, signing, and registration of antenuptial contracts are governed by strict rules under South African law.
Any mistake — such as using the wrong wording, missing key disclosures, or failing to follow the required process — can lead to the contract being invalid.
An experienced attorney ensures that every step complies fully with legal standards, giving you complete peace of mind.
Tailoring the Contract to Your Needs
No two couples are the same. An antenuptial contract should reflect your unique circumstances, financial goals, and personal wishes.
A skilled attorney will advise you on important choices (such as whether to include accrual) and draft a contract that protects your interests both now and in the future.
Avoiding Future Disputes
Poorly drafted contracts can lead to misunderstandings, disputes, and expensive litigation later on — particularly in divorce proceedings.
A clear, professionally prepared antenuptial contract minimises the risk of conflict by setting out rights and obligations in precise, unambiguous language.
Proper Registration
After signing, the contract must be registered at the Deeds Office within the legal time frame. Attorneys who handle antenuptial contracts ensure that registration is properly completed, avoiding technical pitfalls that could otherwise undermine the contract’s enforceability.
Protect Your Future with an Antenuptial Contract
Marriage is a profound personal commitment — but it is also a legal and financial partnership. Taking the time to plan carefully through an antenuptial contract ensures that both partners start their journey together with clarity, fairness, and protection.
An antenuptial contract does not diminish the emotional significance of a marriage; it strengthens it by removing uncertainty and fostering open, honest discussions about the future. Whether you choose an agreement with accrual or without, putting a legally sound framework in place protects not only your assets but also your relationship.
If you are preparing to get married, it’s wise to consult with one of our qualified attorneys who can guide you through the process, tailor the contract to your needs, and ensure that all legal requirements are met.
Professional advice makes the difference between a basic contract and a well-structured, durable agreement that truly safeguards your interests.
Start your marriage with confidence — by putting the right legal foundations in place from the beginning.
Contact us.