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What can be excluded, how the exclusion should be described, and why the wording matters
Yes — spouses marrying with the accrual system can exclude specific, identifiable assets from the accrual calculation in their antenuptial contract. Section 4(1)(b)(ii) of the Matrimonial Property Act 88 of 1984 allows this.
But an exclusion is only as good as its drafting: it must identify an asset the spouse actually possessed when the marriage began, and it must be described precisely enough that the exclusion can still be applied decades later, often to a business, shareholding or property that has changed considerably since the ANC was signed.
This article provides general information about South African law. It does not constitute legal advice and does not predict the outcome of an individual matter.
| Question | General position |
Can specific assets be excluded from accrual? | Yes, under section 4(1)(b)(ii) of the Matrimonial Property Act. |
Can any future asset be excluded in advance? | No. Only an asset the spouse possessed at the commencement of the marriage can be excluded. |
Does excluding an asset also exclude what it later becomes? | Sometimes — if a genuine connection to the original excluded asset can be shown. That question is dealt with separately in our guide to replacement assets. |
Is a vague description enough? | No. The asset must be identifiable, not merely described in general commercial terms. |
Does excluding a business exclude the underlying company assets? | No. The spouse typically owns shares or a member’s interest, not the company’s assets directly — the ANC should identify the actual legal interest held. |
Is an inheritance treated the same way as a contractual exclusion? | No. Inheritances are excluded by a separate statutory rule under section 5, regardless of what the ANC says, unless the parties agree otherwise. |
Section 4 of the Matrimonial Property Act allows spouses married with the accrual system to agree, in their antenuptial contract, that specified assets will not form part of the accrual calculation.
This is a matter of contractual choice, not automatic exclusion. Unlike inheritances under section 5, an asset is only excluded from accrual because the ANC says so.
Commonly excluded assets include:
There is no fixed list. What matters is that the excluded asset can actually be identified — both when the ANC is signed and, ideally, decades later when the marriage ends.
A statement like “my business is excluded” reads clearly on the day the ANC is signed. It can become genuinely uncertain years later.
Before an exclusion clause is finalised, it should be clear:
Where a company operates the business, the spouse generally owns shares in the company, not the company’s underlying assets directly. An ANC that excludes “the business” without identifying the actual shareholding can leave real uncertainty about what was actually agreed.
The safer approach is to describe the precise legal interest — the specific shares, the specific entity, the specific property — rather than a general commercial label.
This is the most important legal limit on an exclusion clause, and it is where poorly drafted ANCs most often go wrong.
Section 4(1)(b)(ii) excludes an asset a spouse possessed at the commencement of the marriage — along with any other asset later acquired “by virtue of” that spouse’s possession of the original excluded asset. It does not allow a spouse to exclude assets they might acquire at some point in the future, unconnected to anything they already owned.
This was confirmed by a full bench of the Gauteng High Court in B F v R F (2017/5018A) [2018] ZAGPJHC 699; 2019 (4) SA 145 (GJ). The husband’s ANC excluded a minority shareholding he held in two companies at the time of the marriage. By the time the marriage ended, he owned the entire shareholding in both.
The court held that the additional shares acquired during the marriage were not automatically excluded merely because the original, smaller stake had been — the exclusion only extends to assets genuinely derived from what was originally excluded, and the spouse relying on the exclusion carries the burden of proving that connection.
The court was direct about why this limit exists: allowing a spouse to exclude whatever they might acquire in future “would make a nonsense of the accrual system.” An ANC is not a mechanism for excluding a spouse’s entire future estate in advance.
What happens when an originally excluded asset is sold, replaced, or reinvested — and whether the replacement is still excluded — is a related but separate question, covered in our guide to replacement assets excluded from accrual.
Because only an asset already held at the marriage’s commencement can be excluded, the ANC should describe that asset with enough precision to survive being read again, decades later, possibly by a court.
Useful practice includes:
An ANC copied from a precedent, without being adapted to the parties’ actual assets, is a common source of later disputes. The exclusion clause should reflect what the parties actually own, not a generic template.
These two mechanisms are often confused, and they produce materially different results.
Declaring an asset’s commencement value means the asset still forms part of the accrual calculation — but only its growth in value during the marriage is counted, since the value it already had at the start is subtracted out.
Excluding an asset means it is left out of the accrual calculation entirely — including any growth in its value during the marriage.
Over a long marriage, particularly with an asset that appreciates significantly, the difference between these two approaches can be substantial. Before an ANC is signed, it should be clear which mechanism is actually being used for each asset the parties want to address.
Two related questions come up often enough to be worth naming explicitly, so this article isn’t mistaken for covering ground it doesn’t:
An ANC exclusion clause is not a formality to get through before the wedding. It can determine the outcome of a significant financial dispute decades later, often involving a business or investment that has grown considerably since the marriage began.
Before signing, it is worth being clear about exactly what is owned, what legal form it takes, and how precisely the ANC describes it — since a court will ultimately be asked to apply the words that were written, not the general intention behind them.
Martin Vermaak Attorneys Inc. advises on South African matrimonial property matters, including antenuptial contracts, accrual, excluded assets, and the drafting and interpretation of exclusion clauses involving businesses, shareholdings, property, and investments.
Where an existing ANC’s exclusion clause is unclear, or a new ANC needs to properly identify substantial assets before marriage, obtaining advice early can help avoid the kind of uncertainty that only becomes apparent — and expensive — at divorce.
Author: Martin Vermaak, B.Proc, LLB
Attorney of the High Court of South Africa | Director, Martin Vermaak Attorneys | Over 20 years’ experience in divorce and family law
Disclaimer
This information has been prepared for general educational purposes only and is not intended to constitute legal, financial, tax or other professional advice. South African family law is fact-specific, and the applicable legal position may depend on the circumstances of the individual matter. Readers should obtain independent professional advice appropriate to their circumstances before making legal, financial or other decisions.
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