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An antenuptial contract (ANC) is a legal agreement signed before marriage that determines how a couple’s assets, debts, and financial affairs will be treated during the marriage and if it ends in divorce or death.
Without one, a marriage in South Africa defaults to in community of property — a single joint estate, with each spouse equally liable for the other’s debts.
An ANC can also do more than simply choose a property regime: it can address spousal maintenance expectations, the treatment of trust structures, and other provisions specific to a couple’s circumstances — provided those provisions don’t attempt to remove a court’s ultimate discretion on matters like maintenance.
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 |
| Is an ANC required to marry in South Africa? | No, but without one you are automatically married in community of property. |
| What are the main ANC options? | With accrual, or without accrual (complete separation of estates). |
Can additional provisions be added to an ANC? | Yes, within limits — provisions that are unreasonable, unlawful, or against public policy won’t be enforced. |
| Can spousal maintenance be waived in an ANC? | No. A full waiver is unenforceable, though the ANC can still record the parties’ expectations. |
Does naming a trust in the ANC protect it from a divorce claim? | Not by itself. What matters more is how the trust is actually controlled and administered. |
Does lobola affect when an ANC must be signed? | Potentially, yes — a customary marriage can be concluded earlier than couples expect, and an ANC must be signed before that happens. |
Who can execute an ANC? | Only an admitted, practising notary public. |
An antenuptial agreement — also called a prenuptial, premarital, or marriage contract, or simply an ANC — is a legal document that sets out how a couple’s assets and liabilities will be treated during their marriage and divided if the marriage ends.
Establishing clear financial boundaries before marriage, the ANC serves as both a protective legal measure and a foundation for honest financial dialogue between partners.
In South Africa, the matrimonial property regime a couple falls into can materially affect personal wealth and debt exposure — understanding and implementing an ANC where appropriate is often central to securing financial clarity going into a marriage.
South African law allows couples to decide the terms governing their assets during marriage. Without an ANC, the default position is marriage in community of property — all assets and debts shared equally, in a single joint estate.
That default doesn’t suit every couple. One practical risk is worth naming directly: in a marriage in community of property, both spouses’ assets can become liable for either spouse’s debts.
If one spouse’s business runs into financial difficulty, the other spouse — even one with no involvement in that business — can find their own assets exposed as a result, simply because the estate is legally shared.
An ANC, by contrast, lets couples choose a regime — with or without accrual — that keeps estates separate to a greater or lesser degree, and can be tailored to the couple’s actual circumstances.
Entering an ANC in South Africa isn’t only about choosing a matrimonial property regime — it also involves declaring the value of each party’s estate at the start of the marriage.
Section 6(1) of the Matrimonial Property Act 88 of 1984 allows spouses to declare the commencement value of their respective estates in the ANC itself.
This matters for two reasons: it creates transparency between the parties from the outset, and — where the accrual system applies — the declared value becomes the baseline against which growth during the marriage is measured.
If the parties don’t declare a value in the ANC before the wedding, the law allows a grace period: the declaration can still be made within six months of the marriage, in a statement attested by a notary.
Where no commencement value was declared, the commencement value is deemed to be nil unless the contrary is proved. Declaring the value properly, and on time, is therefore not a minor formality.
Bath v Bath (952/12) [2014] ZASCA 14 illustrates what happens when an ANC’s terms are genuinely unclear.
The parties’ ANC contained contradictory and inconsistent provisions, and when the marriage ended, one spouse argued it was out of community of property with accrual, while the other argued the marriage was in community of property.
The Supreme Court of Appeal held that the ANC was void for vagueness — its terms were too inconsistent to establish what the parties had actually agreed. The consequence followed automatically: with no valid ANC in place, the marriage was treated as being in community of property by default.
The lesson isn’t that any imperfection in an ANC is fatal — a narrower drafting problem, such as an unclear exclusion clause, is a different and more contained issue.
But Bath v Bath shows what can happen when a contract’s terms are so inconsistent that a court can’t determine the parties’ agreement at all.
For a fuller discussion of this case, and the distinction between total invalidity and narrower drafting problems, see MVA’s guide: Bath v Bath: When Is an Antenuptial Contract Invalid?
This form of ANC keeps each spouse’s estate entirely separate. What you bring into the marriage remains yours, and you’re free to deal with your own assets without needing your spouse’s consent.
The trade-off is that there’s no sharing of growth built up during the marriage — if one spouse builds a substantial estate during the marriage while the other’s income goes toward household expenses, the second spouse has no automatic claim to a share of the first spouse’s growth.
This model is often considered where each party already has a substantial estate or income, or in the case of second or subsequent marriages.
For a full discussion, see our article: Marriage Out of Community of Property Without the Accrual.
This is a common form of ANC, based on the idea of a financial partnership without a fully shared estate.
Each spouse retains ownership of their own assets during the marriage — which can help protect those assets on divorce or death — while sharing in the growth of each other’s estates. On divorce, the net value of each spouse’s estate is calculated, and the spouse whose estate grew less has a claim against the other for half the difference.
If no commencement value is recorded, it’s treated as nil unless the contrary is proved. Inheritances, legacies, and donations a spouse receives from a third party are, by default, excluded from that spouse’s accrual — this happens automatically under section 5 of the Matrimonial Property Act, whether or not the ANC says anything about it, unless the spouses agree otherwise in the ANC, or the testator or donor stipulates otherwise.
Assets can also be specifically excluded by agreement in the ANC itself, though only assets a spouse already held before the marriage can be excluded this way — not future assets in general.
For the detail on what can be excluded and how, see our guides: Can You Exclude Assets From Accrual in an ANC? and Are Inheritances Excluded From Accrual?
An ANC isn’t limited to choosing between accrual and no accrual. Parties are generally free to include any provision they wish, provided it isn’t unreasonable, unlawful, or against public policy. Three questions come up often enough in practice to be worth addressing directly.
Not in the way many couples expect.
A provision that attempts to waive a spouse’s right to claim maintenance on divorce will not be enforced.
The Supreme Court of Appeal confirmed this in ST v CT (1224/16) [2018] ZASCA 73, holding that such a waiver is contrary to public policy — because it attempts to remove a court’s statutory power under section 7 of the Divorce Act to decide maintenance on the actual facts at the time of divorce.
An ANC cannot bind a court’s hands on this point, however clearly the parties agreed in advance.
That doesn’t mean an ANC has nothing useful to say about maintenance. Section 7(2) of the Divorce Act already directs a court, in deciding maintenance, to consider factors including each party’s financial needs and means, their earning capacity, the standard of living during the marriage, the duration of the marriage, and each party’s contribution to the marriage — which expressly includes unpaid contributions such as homemaking and childcare.
A couple where one spouse plans to step back from paid work to raise children is describing exactly the kind of contribution this factor is designed to recognise.
An ANC can record the parties’ shared understanding of that arrangement — for example, an acknowledgment of the career and income sacrifice involved, or the couple’s intentions around how that should be reflected if the marriage later ends.
It can’t guarantee a specific outcome, and it can’t oust the court’s discretion. But a clearly documented, contemporaneous record of what the parties actually intended may still be relevant evidence of the parties’ understanding, considered alongside the statutory factors, rather than a binding formula the court is required to apply.
Simply naming a trust in the ANC — or excluding “the trust” as an asset — does not, by itself, protect that trust’s assets from being considered on divorce.
South African courts may look beyond the formal separation between a spouse and a trust where the evidence establishes abuse of the trust form or the necessary degree of de facto control.
In P A F v S C F (788/2020) [2022] ZASCA 101; 2022 (6) SA 162 (SCA), the Supreme Court of Appeal confirmed that where the trust form has been abused to reduce a spouse’s estate and manipulate an accrual claim, a court may take the relevant trust value into account when determining the accrual — building on the earlier “control test” from Badenhorst v Badenhorst 2006 (2) SA 255 (SCA), which asks whether a spouse exercised de facto control over the trust such that, but for the trust, they would have acquired and owned the assets in their own name.
This matters in both directions when drafting an ANC:
Where a trust — existing or contemplated — forms a meaningful part of a couple’s financial picture, this is an area where the drafting should be considered alongside proper trust administration advice, not addressed by ANC wording alone.
Yes, and this is a point couples planning a customary marriage should understand clearly before assuming there’s plenty of time.
An ANC must be executed before the marriage it relates to. Where a customary marriage will take place — whether alone or followed later by a civil ceremony — the relevant date is when the customary marriage is concluded, not the date of any later civil wedding or celebration.
Under section 3(1) of the Recognition of Customary Marriages Act 120 of 1998, a valid customary marriage requires that both parties be over 18, that both consent to be married under customary law, and that the marriage be negotiated and entered into or celebrated in accordance with customary law.
Courts adopt a flexible and fact-specific approach to whether a customary marriage has been concluded. Full payment of lobola and a formal handing-over ceremony are not invariably required, and the parties’ conduct, the involvement of their families, the lobola arrangements, and the customary steps actually taken may all be relevant.
In one Supreme Court of Appeal case, a valid customary marriage was found to exist following lobola negotiations, payment, and a subsequent customary celebration and welcoming.
The practical consequence is significant: if a customary marriage is concluded before an ANC is signed, signing an ANC afterward does not change the matrimonial property regime.
As with any postnuptial situation, changing the regime at that point requires a formal court application under section 21 of the Matrimonial Property Act — not simply a fresh notarial document.
This was reinforced by the Constitutional Court in a 2026 judgment concerning an ANC signed between a customary marriage and a later civil marriage, where the customary marriage’s timing meant the ANC could not validly alter the couple’s property consequences without that court process.
The safest practical approach is to have the ANC signed and executed before lobola negotiations begin, not merely before an anticipated wedding date — since the point at which a customary marriage is legally concluded can come earlier, and less formally, than many couples expect.
For the fuller legal position on ANC timing and customary marriages, see our article: Customary Marriage Antenuptial Contract in South Africa: VVC v JRM.
An ANC also matters beyond divorce. Where a couple married out of community of property, each spouse’s estate remains their own — so the ANC, together with a properly drafted will, plays a role in how a deceased spouse’s estate is administered and distributed.
For more on this, see our article: Why You Must Have a Will (Pros and Cons).
For an ANC intended to regulate a marriage out of community of property, the agreement must be concluded before the marriage and properly executed before a notary.
It must then be registered in the Deeds Office in accordance with the Deeds Registries Act if it is to operate against third parties. The terms must also be lawful and consistent with public policy.
An ANC that isn’t properly registered can still be enforceable between the spouses in some circumstances, though it won’t have force against third parties such as creditors until registered.
For the detail on registration timing and what happens if it goes wrong, see our article: What Happens if an ANC Is Not Registered?
A post-nuptial agreement — entered into after marriage — is a different, less common arrangement. Because it changes an already-existing matrimonial property regime rather than establishing one before marriage, it requires a formal joint application to the High Court under section 21 of the Matrimonial Property Act.
The court must be satisfied there are sound reasons for the change, that creditors have received proper notice, and that no one will be prejudiced.
For the process involved, see our article: How to Change Your Marital Regime.
Martin Vermaak Attorneys has an experienced family law team and an in-house notary public, meaning your ANC can be drafted, explained, and properly executed under one roof — with the formalities followed correctly and your specific circumstances, including any maintenance, trust, or customary marriage considerations, properly addressed from the outset.
Contact Martin Vermaak Attorneys to discuss your antenuptial agreement and matrimonial property options. Our family law attorneys can assist with preparing your ANC, and our in-house notary public can attend to the registration formalities.
For related guidance, see MVA’s articles on 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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