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What can still be done if a declared commencement value turns out to be wrong
Since the Supreme Court of Appeal’s decision in Manelis v Manelis (1235/22) [2025] ZASCA 55, a commencement value expressly agreed and declared in an antenuptial contract is treated as conclusively binding between the parties for accrual purposes, even if evidence later suggests that the objectively correct value was different, unless the ANC is successfully attacked or rectified on recognised common-law grounds.
That significantly narrows what a spouse can do if they later believe the declared value was wrong — proving “the number was wrong” is no longer, on its own, enough. This article focuses on what can still realistically be challenged, on what grounds, and what evidence that requires.
For the full explanation of the Manelis decision and why declared values are now binding, see our companion guide: Declared Values in Antenuptial Contracts Are Binding.
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 a declared commencement value still be challenged? | Only on recognised contractual grounds — it is no longer enough to simply argue the value was inaccurate. |
What are those grounds? | Fraud, misrepresentation, duress, undue influence, or a proper case for rectification. |
Does section 6(3) make ANC-declared values conclusive? | No — that binding effect comes from ordinary contract law, as confirmed by the SCA in Manelis. Section 6(3) deals with a narrower, separate situation. |
What if the value was recorded in a separate section 6(1) statement? | A value recorded in a qualifying section 6(1) statement — made before the marriage or within six months afterwards — serves as prima facie proof and may be rebutted by contrary evidence. |
What if no value was declared at all? | Deemed nil, unless the contrary is proved. |
What if liabilities exceeded assets at commencement? | Also deemed nil under section 6(4)(a), regardless of whether a value was declared. |
Is this settled law? | The Supreme Court of Appeal has now resolved conflicting High Court authority on this point, but the practical fairness implications are still being debated. |
Commencement-value disputes tend to conflate three genuinely different situations. Keeping them separate is the most useful starting point:
A value was agreed and recorded in the ANC itself. This is now contractually binding — not open to challenge simply because it later turns out to be inaccurate. It can only be set aside on recognised contractual grounds, or corrected through rectification.
A value was recorded in a separate statement under section 6(1), rather than in the ANC itself. Section 6(1) allows this statement to be made before the marriage or within six months afterwards. Such a statement serves as prima facie proof only — meaning it can still be disputed with contrary evidence, without needing to establish fraud or a similar ground. Section 6(3), properly interpreted, does not make a commencement value expressly agreed and declared in the ANC merely prima facie proof in this way — it governs this separate, section 6(1) situation.
No value was declared at all. The commencement value is deemed to be nil, unless the contrary is proved.
Before Manelis, South African courts were genuinely divided on how a commencement value recorded in an ANC should be treated. Some decisions treated it as binding unless attacked on ordinary contractual grounds.
Others treated it as merely prima facie evidence — a starting point a spouse could challenge simply by presenting contrary evidence of the estate’s true value.
The Supreme Court of Appeal resolved that conflict, confirming that an earlier line of authority — including Olivier v Olivier, Jones and Another v Beatty NO, M v M (62488/15) [2016] ZAGPPHC 1220, and the full-court decision in NHM v HMM, all of which treated declared values as binding — was correct, over a competing line represented by Thomas v Thomas and TN v NN, which had treated such values as merely prima facie proof.
The Court’s reasoning is important to understand correctly. The binding effect of a value recorded in the ANC does not come from section 6(3) of the Matrimonial Property Act itself.
Section 6(3) addresses the evidential status of a value declared in a separate statement under section 6(1) — it does not convert a value that the parties have expressly agreed in their ANC into merely rebuttable evidence.
The SCA held that the binding force of an ANC-recorded value comes from ordinary contractual analysis: the parties agreed to it, in a binding contract, and general contract law — not section 6(3) — determines when that agreement can be disturbed.
That distinction matters practically. It means the courts are not simply applying a statutory evidential rule; they are applying the ordinary principle that a contract binds the parties who signed it, subject to the ordinary grounds on which any contract can be challenged.
A commencement value recorded in an ANC can still be challenged or corrected — but only on the same grounds available for any contract:
Fraud — where the value was deliberately misstated to deceive the other party.
Misrepresentation — where false information about the estate’s value induced the declaration.
Duress or undue influence — where the declaration was not genuinely voluntary.
Rectification — where the written document does not accurately reflect what the parties actually agreed, due to a genuine drafting or recording error.
What is no longer sufficient, on its own, is simply showing that the declared figure doesn’t match the estate’s actual value. The spouse challenging the declaration carries the burden of establishing one of these specific grounds — not just a discrepancy in numbers.
This is where the real challenge usually lies. These grounds are not easy to establish years after the fact, particularly where:
the declaration was made with professional legal or notarial assistance;
there is no contemporaneous record suggesting either party doubted the figure at the time;
the asset in question (a business, a shareholding, a property) has a value that is genuinely open to professional disagreement, rather than one party having concealed something; or
the passage of time has made records, valuations, or witnesses harder to obtain.
A spouse considering this route should think carefully about what evidence actually exists — not just whether the declared value now looks wrong in hindsight.
Where there is a genuine basis to allege fraud, misrepresentation, duress, or a case for rectification, relevant evidence may include:
correspondence or instructions given to the notary at the time the ANC was drafted;
financial records, valuations, or statements available at the time of the marriage;
evidence that one spouse had access to information the other did not;
expert valuation evidence addressing what the true value should have been; and
any contemporaneous indication that either party questioned the figure before signing.
Where no commencement value was declared at all, the default position is that it is deemed to be nil — but this can be rebutted with sufficient evidence of the true position at the start of the marriage. Relevant evidence may include:
contemporaneous financial statements or tax records;
bank and investment account records from around the date of marriage;
property valuations or deeds records showing ownership at the relevant date;
company or shareholding records; and
loan account balances or other documented liabilities.
The same nil-value consequence also applies under section 6(4)(a) where a spouse’s liabilities exceeded their assets at the commencement of the marriage — regardless of whether a value was declared. In both situations, the quality of contemporaneous documentation is usually decisive.
This area of law is not without controversy, and a client should be aware of the concern, not just the rule.
Treating a declared value as binding protects certainty and discourages opportunistic litigation. But it can also mean that a spouse who accepted a declared value in good faith — without independently verifying it, and without the resources or leverage to challenge a wealthier or better-informed partner at the time of the marriage — has very limited recourse later, even where the figure turns out to have been inaccurate.
Independent legal commentary on this decision has specifically raised this concern, given that it can affect spouses unevenly depending on their financial sophistication and bargaining position at the time the ANC was signed.
This is not a reason to expect the rule to change. It is a reason to take the declaration seriously before signing, since the opportunity to revisit it afterward is now considerably narrower than it once was.
Given how limited the options are after the fact, the more useful moment to address a commencement value concern is before the contract is signed:
obtain your own professional valuation of any significant asset — a business, a shareholding, or property — rather than relying on the other party’s figure;
keep records of what information was available and exchanged at the time;
raise any doubts about a declared value before signing, not after; and
treat the declaration as a binding figure, not a placeholder that can be adjusted later.
If a marriage has already ended, or is ending, and one spouse believes the other’s declared commencement value was inaccurate, the practical starting point is establishing whether there is a genuine basis — fraud, misrepresentation, duress, undue influence, or rectification — rather than assuming the figure can simply be recalculated.
That assessment should be made early, since it shapes what evidence needs to be gathered and how the matter should be approached.
Martin Vermaak Attorneys Inc. advises on South African matrimonial property disputes involving antenuptial contracts, commencement values, accrual calculations, and disputes over declared estate values.
Where a commencement value is disputed, or where a client is preparing to sign an ANC and wants the declared values properly considered, obtaining advice early can materially affect the available options.
For related guidance, see MVA’s articles on Antenuptial Contracts South Africa, Bath v Bath: When Is an Antenuptial Contract Invalid?, Can You Exclude Assets From Accrual in an ANC?, Are Replacement Assets Excluded From Accrual in an ANC?, Are Inheritances Excluded From Accrual?, and Marriages with Accrual in South Africa.
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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