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A South African antenuptial contract can remain highly important in an international divorce, but living abroad does not mean that the ANC can simply be applied – or ignored – without first establishing which law governs the matrimonial-property consequences of the marriage.
For South Africans who have moved to England, Europe, Australia, the Middle East or elsewhere, the existence of a South African antenuptial contract (ANC) is often one of the first financial questions to arise when the marriage breaks down.
The document may determine important rights under South African law, including whether the accrual system applies, the spouses’ commencement values and any assets specifically excluded from accrual.
International divorce adds a second layer. The spouses must distinguish between where the divorce can be instituted, which law governs the proprietary consequences of the marriage, what the ANC means under South African law and, if proceedings take place abroad, what significance the foreign court may give to the South African agreement. Those questions are related, but they are not the same.
| Question | General position |
Does a South African ANC disappear because we moved overseas? | No. Moving abroad does not itself cancel the agreement. |
Does having a South African ANC mean we must divorce in South Africa? | No. Divorce jurisdiction is a separate question. |
Does a South African ANC automatically mean South African law governs every financial issue? | No. The applicable-law question must be analysed separately, particularly in an international marriage. |
Can MVA explain what my South African ANC means? | Yes. MVA can advise on its South African legal meaning, subject to the facts and the law applicable to the marriage. |
Can MVA decide what an English court will do with the ANC? | No. That is an England and Wales law question for an appropriately authorised practitioner there. |
What if the ANC contains exclusions or commencement values? | These can materially affect the South African accrual analysis and should be examined carefully. |
| What if the ANC was never registered? | The consequences can be more complicated and require analysis of the agreement, registration history and applicable South African law. |
| Should the ANC be reviewed before choosing where to institute divorce proceedings? | Usually, yes. In a genuine cross-border case, jurisdiction, applicable law and matrimonial-property consequences should be investigated early. |
Living overseas does not erase the legal history of the marriage. A couple may have married in South Africa, executed an ANC before marriage and subsequently lived abroad for many years. During that time they may have accumulated property in several countries, private-company interests, offshore investments, South African retirement interests, trusts, shareholder loans and other substantial assets.
When divorce becomes likely, it can be tempting to assume that the ANC has either become irrelevant because the spouses now live abroad or controls everything because it was signed in South Africa. Neither assumption is sufficiently careful. The ANC must first be understood as a South African legal instrument, after which the wider cross-border analysis must determine how it fits into the applicable international and foreign-law framework.
Under South African law, an ANC is principally concerned with the matrimonial-property consequences of the marriage. For marriages falling within the Matrimonial Property Act 88 of 1984, an ANC may provide that the spouses are married out of community of property either with the accrual system or with the accrual system expressly excluded.
Section 2 of the Matrimonial Property Act provides, in broad terms, that a marriage out of community of property under an ANC is subject to accrual unless accrual is expressly excluded. Where accrual applies, section 3 provides for an accrual claim when the marriage is dissolved. The spouse whose estate shows the smaller accrual may have a claim calculated by reference to half the difference between the respective accruals.
The actual ANC can be crucial. It may contain provisions concerning commencement values, specifically excluded assets, businesses or shares, immovable property, inheritances, trusts and other individually negotiated terms. The document should therefore be obtained and read before anyone assumes what matrimonial-property regime applies.
Where a South African matrimonial-property regime applies, the fact that an asset is situated abroad does not, without more, answer whether it is relevant to an accrual calculation. Accrual is fundamentally concerned with the growth of the spouses’ respective estates.
Section 4 of the Matrimonial Property Act determines accrual by comparing the net value of an estate at the commencement and dissolution of the marriage, subject to statutory and contractual exclusions. Section 5 separately addresses inheritances, legacies and donations.
An international estate may therefore require the legal team to identify assets and liabilities across several countries before determining the South African matrimonial-property position. That does not mean that South African law necessarily governs the proprietary consequences of every international marriage. That question must first be established.
A South African court may have jurisdiction to grant a divorce without South African law necessarily governing every proprietary consequence of the marriage. Conversely, a South African legal instrument or South African assets may remain important even where divorce proceedings occur elsewhere.
It is useful to separate four questions: jurisdiction asks which court has legal authority to deal with the divorce; applicable law asks which legal system governs the matrimonial-property consequences; the contractual question asks what the ANC actually means under the law governing it; and foreign treatment asks what significance another country’s law gives to the agreement and the resulting South African proprietary position.
Confusing those questions can lead to serious mistakes in settlement negotiations or litigation strategy.
International matrimonial-property law in South Africa changed materially on 23 June 2026. In N.P. v Minister of Justice and Constitutional Development and Others [2026] ZAWCHC 343, the Western Cape High Court declared unconstitutional and invalid the old common-law rule under which the proprietary consequences of a marriage were determined by the husband’s domicile at the time of marriage.
The Court replaced that rule with a gender-neutral hierarchy. The first enquiry is whether, before or at the time of marriage, the spouses chose the law that would govern their matrimonial-property consequences. That choice will be recognised only where there is a substantial link or connection between the chosen legal system and one or both spouses. If there was no effective choice, the Court identified successive connecting factors: the spouses’ common domicile at the time of marriage, their common habitual residence, their common nationality and, finally, the country with which they were jointly most closely connected when they married.
The judgment is especially important for existing international marriages because the Court also regulated retrospectivity. Where spouses did choose a governing law in an ANC, the new rule does not apply for two years from 23 June 2026, giving them an opportunity to amend the ANC to align with the new framework. Where spouses did not choose a governing law, the new rule applies retrospectively unless doing so would cause substantial prejudice.
The order does not disturb positive steps, decisions or transactions already taken under the former husband-domicile rule, and it does not apply to marriages already dissolved by divorce or death before 23 June 2026.
Because N.P. is a High Court judgment developing the common law, rather than an order declaring legislation constitutionally invalid, Constitutional Court confirmation is not a prerequisite for the order to operate. The judgment is nevertheless recent and remains capable of being challenged on appeal, so the current procedural position should be checked when advice is given.
A South African ANC may contain detailed matrimonial-property provisions without expressly saying that South African law governs the proprietary consequences of the marriage. That distinction has become particularly important following N.P.
The analysis should therefore begin with the actual document rather than assumptions about what the parties intended. Relevant facts can include where the ANC was executed, what law it expressly refers to, whether it contains an express choice-of-law provision, where each spouse was domiciled and habitually resident when they married, their nationalities, where the marriage was concluded, where they established married life, where their material assets are situated and what the ANC says about accrual and exclusions.
A cross-border matrimonial-property opinion may therefore require considerably more than simply obtaining a copy of the ANC.
Where South African law and the accrual system apply, the calculation should be evidence-led. The starting point is ordinarily each spouse’s commencement value. Section 6 of the Matrimonial Property Act provides mechanisms for recording and proving commencement values.
The legal and financial analysis may then require current asset schedules, liabilities, commencement-value evidence, CPI adjustments, contractual exclusions, inheritances and donations, business interests, shareholder loans, trusts, investment accounts, foreign property and supporting records. International assets can make this exercise more demanding because records, currencies, ownership structures and valuations may span several jurisdictions.
An ANC may exclude specific existing assets from accrual, but the wording and timing of the exclusion matter.
In W.L.F v R.S.F [2026] ZAGPJHC 228, the Gauteng High Court confirmed that assets which did not yet exist when the marriage commenced cannot validly be excluded from accrual merely in anticipation of their future acquisition. Existing assets, however, may validly be excluded. The Court also held that questions concerning later-acquired assets may depend on whether they were acquired by virtue of rights or assets already held at the commencement of the marriage.
That distinction can become commercially significant where an ANC refers to shares, options, businesses, investment structures or other assets that later change form or generate new assets. It is therefore not enough simply to label an asset as excluded. The original asset, the wording of the ANC, any pre-existing rights, subsequent transactions and the statutory rules governing accrual all need to be traced.
An apparent registration problem should be investigated rather than treated as automatically resolving the matrimonial-property dispute. The legal team should establish whether an agreement was concluded before marriage, what its terms were, whether it was notarised, whether and when it was registered, whether there is evidence of the spouses’ pre-marital agreement, whether third-party rights are affected and what remedy, if any, is available under South African law.
MVA has separate guidance dealing with unregistered antenuptial contracts. In an international divorce, the immediate point is that a registration defect should be identified early because it may affect the South African proprietary analysis and the advice given to any foreign legal team.
Calling a document an “antenuptial contract” does not make it one if the relevant marriage already existed.
In VVC v JRM and Others [2026] ZACC 2, the Constitutional Court dealt with an ANC signed after an existing customary marriage and confirmed the importance of judicial oversight where spouses seek to change an existing matrimonial-property regime. A post-marriage agreement of that kind should therefore be analysed carefully before it is relied upon as though it were an ordinary ANC.
MVA has separate guidance on this issue for spouses whose matrimonial-property arrangements may have been changed or recorded after an existing marriage.
MVA can advise on South African law, including the meaning and validity of a South African ANC, the South African matrimonial-property regime, accrual, commencement values, contractual exclusions, South African assets and liabilities, companies and shareholder loans, trusts and South African retirement interests.
Where proceedings take place in England and Wales, an appropriately authorised England and Wales practitioner should advise on what legal weight or effect the English court may give the ANC and the South African matrimonial-property position. MVA does not presently conduct England and Wales litigation or hold itself out as an England and Wales law firm.
The two legal teams can nevertheless work from the same factual and financial record, with each advising on the law of the jurisdiction for which it is responsible.
It is unsafe to assume that because a South African ANC exists, every court in the world must divide the spouses’ assets exactly as that ANC provides. The South African-law meaning of the ANC is one question; the governing law is another; the treatment of the agreement by a foreign court is another; and recognition or implementation can raise further questions.
The practical objective is to determine the role of the ANC before settlement positions are built around assumptions about it.
A useful cross-border ANC review should ordinarily begin with the relevant documents. These may include the complete signed ANC, Deeds Office registration details, marriage certificate, commencement-value declarations, schedules or annexures to the ANC, identity and citizenship documents, evidence relevant to domicile and residence at the time of marriage, subsequent agreements between the spouses, records relating to excluded assets, company and trust documentation, current asset and liability schedules and any divorce proceedings already instituted in South Africa or abroad.
The precise documents required will depend on the facts of the case.
Assume a South African couple signs an ANC with accrual and later moves to England. One spouse builds a substantial South African company. The other acquires property and investments in England. Their ANC excludes a particular pre-marital shareholding, and the spouses disagree about whether later shares and proceeds are also excluded.
The case raises several distinct questions. Which law governs the matrimonial-property consequences of the marriage? What does the ANC mean under South African law? If accrual applies, what forms part of each spouse’s estate and what is excluded? How should the company interest be valued? If the divorce proceeds in England and Wales, how will the authorised English legal team advise on the relevance and treatment of the South African position?
The existence of the ANC is therefore the beginning of the analysis, not the end of it.
Martin Vermaak Attorneys is a South African law firm specialising in divorce and family law. In an international matter involving a South African ANC, MVA may assist with the South African-law component, including reviewing the ANC, establishing the matrimonial-property regime, analysing accrual and exclusions, considering commencement values, identifying South African assets and liabilities, analysing businesses, shares and shareholder loans, considering trust structures, assessing South African retirement interests, obtaining relevant South African documentation, advising on South African divorce jurisdiction where required and coordinating with appropriately authorised foreign practitioners.
Where the matter also requires England and Wales legal advice, that advice should be provided by an appropriately authorised England and Wales practitioner.
No. Moving overseas does not itself invalidate an ANC. The wider international analysis must, however, establish the applicable law and the role of the ANC in the particular proceedings.
Potentially, and sometimes materially. Its South African legal meaning should be established before assumptions are made about the financial consequences of divorce.
No. The existence of an ANC and divorce jurisdiction are separate questions.
Not necessarily. The applicable-law question should be determined separately. The June 2026 N.P. judgment materially changed the South African common-law framework governing that enquiry.
An ANC can contain valid exclusions, but the precise wording, the existence of the asset at the commencement of the marriage and the relationship between an excluded asset and later assets or proceeds must be analysed carefully.
Section 5 of the Matrimonial Property Act generally excludes inheritances, legacies and donations from accrual, subject to the qualifications contained in the Act and any relevant agreement or stipulation.
That does not justify inventing a figure. Section 6 contains rules concerning proof of commencement values, and the available evidence should be assessed before the accrual calculation is undertaken.
MVA can advise on the South African legal position. Advice about how an England and Wales court will treat the ANC must come from an appropriately authorised practitioner in that jurisdiction.
Where jurisdiction, applicable law or substantial assets span more than one country, early review is prudent. Decisions about proceedings and settlement should not be based on an assumed matrimonial-property position.
A South African ANC can remain a central document in an international divorce long after the spouses have left South Africa. The correct analysis, however, is not simply to ask whether the ANC “still applies”.
The legal team should establish the applicable law, determine precisely what the ANC provides, identify the matrimonial-property consequences under South African law where relevant and distinguish that analysis from the way a foreign court may treat the agreement. For internationally mobile families with businesses, trusts, investments or substantial assets, that work should ideally be completed before litigation or settlement decisions create consequences that are difficult to reverse.
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
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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