An antenuptial contract (ANC) is probably the most important legal document most couples will ever sign, and one of the least thought about. It decides who owns what during the marriage, and how assets are shared if the marriage ends in divorce or death.
Without a valid ANC, South Africans who marry under civil law are automatically married in community of property. This article explains the options, the formalities and the common mistakes.
The three property regimes
In community of property. There is one joint estate. Each spouse owns an undivided half of all assets and is liable for all debts, including debts incurred before the marriage. Certain major transactions require the other spouse’s consent. On divorce, the joint estate is divided equally.
Out of community of property with the accrual system. Each spouse has a separate estate, and is not liable for the other’s debts. On divorce or death, the growth (accrual) in each estate during the marriage is compared, and the spouse whose estate grew less has a claim for half of the difference. This is the default for ANCs signed after 1 November 1984, unless the ANC expressly excludes the accrual system.
Out of community of property without accrual. Each spouse keeps their own estate, with no sharing of growth. This regime offers the most separation, but it is no longer the “clean break” it once was. Following EB v ER (2023) and GD v Minister of Home Affairs (2026), a court may make a redistribution order on divorce, including taking pension interests into account. See our article on divorce, pensions and redistribution.
How the accrual system works in practice
The accrual of each estate is its net value at the end of the marriage, less its net value at the start (its commencement value), adjusted for inflation. Some assets are left out:
- inheritances, legacies and donations received from third parties during the marriage, and assets acquired with them, unless the ANC provides otherwise;
- non-patrimonial damages, such as damages for pain and suffering; and
- assets specifically excluded in the ANC, such as shares in an existing business or a family property, and assets acquired by virtue of possessing them.
Each spouse can declare their commencement value in the ANC. If a spouse does not, it is presumed to be nil, unless proved otherwise. A commencement value that is unrealistic, or not backed by evidence, is a common source of disputes years later.
Formalities: getting the contract valid
An ANC must:
- be signed before the marriage;
- be executed before a notary public, with two competent witnesses; and
- be registered in the Deeds Office within three months of the date of execution.
An ANC that is not registered in time is not binding on third parties, such as creditors, although it may still bind the spouses. A late registration requires a court application under section 88 of the Deeds Registries Act. An informal agreement signed before the wedding, but not notarially executed, does not create an ANC for third parties.
Customary and civil marriages: the VVC v JRM warning
Many couples enter into a customary marriage and later also marry under civil law. In VVC v JRM and Others [2026] ZACC 2, decided on 21 January 2026, the Constitutional Court considered a couple who married under customary law in 2011, signed an ANC in 2019 and then concluded a civil marriage in 2021.
The majority held that the couple were already married when they signed the ANC. The ANC was therefore in substance a postnuptial contract, invalid because it had not been approved by a court under section 21 of the Matrimonial Property Act. Because the customary marriage was in community of property, it remained in community of property after the civil marriage.
The judgment has implications for many couples, and for conveyancers and banks dealing with property registered on the basis of such contracts. Couples who signed an ANC between a customary and a civil marriage should take advice.
Changing your regime after marriage
Spouses who want to change their property regime after marriage, for example from in community of property to out of community with accrual, must apply to the High Court under section 21(1) of the Matrimonial Property Act. The court must be satisfied that:
- there are sound reasons for the change;
- sufficient notice has been given to the Registrar of Deeds and to all creditors (usually by publication in the Government Gazette and newspapers, and by registered post); and
- no other person will be prejudiced by the change.
If the application is granted, the court authorises the spouses to sign a notarial contract that will then be registered. The process takes several months.
International couples
Where one or both spouses are foreign, or the couple will live abroad, the question of which country’s law governs their property regime becomes important. The law on this point changed in June 2026. See our article on which law governs your marriage property.
Common mistakes
- Leaving it until the last minute. The ANC must be signed before the wedding. A rushed contract often contains errors.
- Not declaring commencement values, or declaring values that cannot be supported later.
- Not excluding key assets, such as an existing business or a family farm.
- Assuming “no accrual” means complete protection. Redistribution claims may now apply.
- Not aligning the ANC with wills and trusts. The accrual claim also arises on death, and should be considered in estate planning.
How O’Reilly Law can help
We draft and register antenuptial contracts, advise business owners on protecting their interests, and bring section 21 applications to change a matrimonial property regime. Through O’Reilly Fiduciary, we align ANCs with wills and trusts. Contact us to discuss your plans.
Related reading: Your business in a divorce · Getting divorced in South Africa
This article is general information and not legal advice. Correct as at October 2026.