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Most couples spend months planning a wedding and very little time planning a marriage, at least not in the legal sense. The decision about how your assets and debts will be treated in law is one of the most consequential financial choices you'll make as a couple, and it needs to be made before you walk down the aisle. Once you're married, the window to structure your own financial arrangement closes, and changing it afterwards requires a formal High Court application that is expensive, time-consuming, and not guaranteed to succeed.
South African law is clear on the default position: if you marry without an antenuptial contract, you are automatically married in community of property. That means one joint estate, shared assets, shared debts, and every financial consequence that flows from that arrangement whether you intended it or not. An antenuptial contract takes you out of that default, but the contract itself presents a choice, and the difference between the two options can shape the financial reality of your marriage for decades.
If no antenuptial contract is signed before the wedding, South African law automatically applies the default matrimonial property regime: marriage in community of property. The financial consequences of that outcome are substantial and immediate.
Under this regime, both spouses' separate estates merge into a single joint estate the moment the marriage is concluded. Every asset either of you owned before the wedding, and everything acquired during the marriage, belongs equally to both of you. So does every liability. Debts incurred by one spouse before or during the marriage become obligations of the joint estate, and creditors of either spouse have full recourse against it. If one spouse is sequestrated, the joint estate is dissolved in its entirety, which means both spouses face insolvency simultaneously.
There are limited exceptions to what falls into the joint estate. An inheritance specifically excluded by the testator in their will, or a donation made to one spouse by a third party with an express exclusion condition, will not automatically become joint property. These carve-outs are narrow and specific, and they offer no general protection against the broader liabilities that community of property creates. For couples where one or both parties run a business, carry pre-existing debt, or simply want to maintain financial independence, this is a regime that can create serious unintended exposure.
An antenuptial contract does one fundamental thing: it takes you out of community of property. Everything built on top of that, the choice of regime, specific exclusions, commencement values, is governed by what the contract contains.
To be legally valid, the ANC must be signed by both parties before the marriage is solemnised and must be executed before a notary. The notary then registers the contract at the relevant Deeds Office, ordinarily within three months of execution. Failure to register within the prescribed period, or signing the contract after the marriage has already been concluded, means the contract will not be enforceable against third parties and the default community of property regime will apply. The timing requirement is therefore as important as the content of the contract itself.
What the ANC contains determines which of two matrimonial property regimes will govern your marriage: out of community of property with the accrual system, or out of community of property without the accrual system. Under the Matrimonial Property Act 88 of 1984, if your ANC does not expressly exclude the accrual system, the accrual applies automatically. The choice therefore needs to be a deliberate one, made with a clear understanding of what each option means.
Under this regime, each spouse maintains a completely separate estate throughout the marriage. There is no merging of assets, no shared liability for each other's debts, and no requirement for spousal consent when entering into financial transactions. What the accrual system does is introduce a principle of shared growth: when the marriage is eventually dissolved, whether by divorce or by death, the financial gains each spouse made during the marriage are equalised between them.
The mechanism for this is set out in section 3 of the Matrimonial Property Act 88 of 1984. At dissolution, the net value of each spouse's estate at the commencement of the marriage is subtracted from the net value of their estate at dissolution. The difference is that spouse's accrual. The spouse whose estate shows a smaller accrual, or no accrual at all, then acquires a claim against the other spouse for an amount equal to half the difference between the two accruals. In practical terms: what was yours before the marriage remains yours, and what you built during the marriage is shared equally at the end.
To make this calculation fair across long marriages, the Act requires that the commencement value be adjusted for inflation using the weighted average of the Consumer Price Index, as published by Statistics South Africa. This prevents a situation where a modest starting estate from twenty years ago is compared in nominal rand terms against a present-day estate without accounting for the change in the value of money. Commencement values must be declared in the ANC itself, or alternatively in a signed notarial statement within six months of the marriage. If no commencement value is declared and no such statement is filed, the Act deems the commencement value to be nil, which means the entire value of that spouse's estate at dissolution is treated as accrual.
Not everything a spouse accumulates during a marriage counts towards their accrual. Section 5 of the Matrimonial Property Act excludes inheritances, legacies, and donations received from third parties during the marriage, as well as any asset acquired by virtue of owning such an inheritance or donation, unless the ANC or the relevant will or donation agreement specifies otherwise. Donations between spouses are also excluded. Certain non-patrimonial damages awards, such as compensation for pain and suffering, are likewise left out of the accrual calculation.
These exclusions exist by operation of law and do not need to be written into the ANC to apply. They reflect the legislature's view that windfalls from outside the marriage, assets a spouse received rather than earned, should not automatically become part of the shared growth story.
Beyond the statutory exclusions, the ANC itself can ring-fence particular assets from the accrual. Parties commonly do this for a share in a family business, an interest in a family trust, shares held under an employer incentive scheme, or speculative property with the potential for significant capital growth. Where such an asset is excluded in the ANC, it is not taken into account at either the commencement or the dissolution of the marriage when calculating the accrual.
This flexibility is one of the accrual system's genuine strengths. It allows couples to protect assets where the growth is tied to factors outside the marriage, while still sharing in the organic financial progress they build together. Drafting these exclusions requires careful attention. Broadly or poorly worded exclusion clauses can be challenged, and assets that are not clearly identified in the contract may be pulled back into the accrual calculation at dissolution. This is one of several reasons why having an experienced notary draft the contract is not optional.
Under this regime, the separation of estates is absolute. Each spouse owns their own assets, carries their own liabilities, and builds their own financial picture independently — before, during, and after the marriage. When the marriage ends, each spouse retains what is in their own name. There is no calculation, no comparison of estates, and no claim by one spouse against the other for a share of wealth built during the marriage.
The practical protections during the marriage are identical to those enjoyed under the accrual system. Neither spouse is liable for the other's debts. Creditors of one spouse cannot pursue the assets of the other. If one spouse is sequestrated, the other's estate is protected. Each party also has full freedom to manage, sell, and deal with their own assets without requiring spousal consent.
Where the two regimes diverge is at dissolution. A spouse married without accrual has no automatic right to share in the growth of the other's estate, regardless of how long the marriage lasted or what either party contributed. If a business was built entirely in one spouse's name over thirty years of marriage, the other spouse has no claim against it. If a property portfolio was accumulated by one partner while the other managed the household and raised children, that unpaid contribution creates no legal entitlement to a share of the financial result. This is the central tension in the without-accrual arrangement, and it is worth understanding clearly before choosing it.
In October 2023, the Constitutional Court delivered judgment in EB (born S) v ER (born B) and Others; KG v Minister of Home Affairs and Others [2023] ZACC 32, which declared certain provisions of section 7(3) of the Divorce Act unconstitutional. The effect of that judgment is that courts now have a discretionary power to order redistribution of assets in marriages out of community of property without accrual, both on divorce and on death, where a spouse can demonstrate that they contributed directly or indirectly to the maintenance or growth of the other's estate. The General (Family) Laws Amendment Bill B20-2025 has been introduced in Parliament to formalise this position in legislation.
Redistribution under this provision is not automatic. It is a court discretion, the applying spouse carries the burden of proof, and the outcome is never guaranteed. What it does mean is that the without-accrual arrangement no longer offers the absolute financial insulation it once did, and that reality should inform the decision.
The right regime depends on the specific circumstances of the couple entering the marriage, and no general rule covers every situation. That said, some patterns are consistently useful in thinking through the decision.
The accrual system tends to be the more appropriate choice where there is a meaningful difference between the financial positions of the two spouses, or where it is anticipated that one spouse will reduce their earning capacity during the marriage — to raise children, support the other's career, or manage the household. It recognises that a marriage is an economic partnership in which contributions take different forms, and it ensures that the spouse who builds less wealth on paper is not penalised at dissolution for having done so. It is also the default position under the Matrimonial Property Act 88 of 1984 for good reason: the legislature took the view that it represents the most equitable outcome for the majority of marriages.
Exclusion tends to be more appropriate where both spouses enter the marriage with substantial, independently established estates, where both have equal or comparable earning capacity and intend to maintain entirely separate financial lives, or where one or both parties are in a second or subsequent marriage with children from a prior relationship whose inheritance interests need to be clearly preserved. In these circumstances, sharing growth may not reflect the intention or the reality of the arrangement.
Regardless of which route you choose, the detail of the contract itself matters enormously. First, the commencement values declared in an ANC with accrual carry real legal weight. The Supreme Court of Appeal confirmed this in Manelis v Manelis (Case no 1235/22) [2025] ZASCA 55, where the declared commencement value became the central point of dispute at dissolution. Accurate, well-documented commencement values are not a formality. Second, specific asset exclusions must be drafted with precision. Vague or broadly worded exclusion clauses can be challenged at dissolution, and the consequences of poorly drafted language can be significant.
The short answer is yes, but it is neither simple nor inexpensive, and it is not something a court will approve without proper justification.
Section 21(1) of the Matrimonial Property Act 88 of 1984 provides the mechanism for this. Both spouses must apply jointly to the High Court for leave to change their matrimonial property regime. One spouse cannot bring the application alone. The court will only grant the order if it is satisfied that all of the following requirements are met:
If the court is satisfied, it will authorise the parties to execute a notarial postnuptial contract, which must then be registered at the Deeds Office to take effect. On an unopposed basis, the process typically takes three to four months to conclude. It involves court fees, publication costs, specialist legal drafting, and potential advocate fees — and if a creditor objects, the matter becomes significantly more complex.
The procedural weight of a post-marriage regime change reinforces a straightforward point: the antenuptial contract is a decision that deserves proper attention before the wedding, not remedial action afterwards. Couples who sign an ANC without fully understanding what they are agreeing to, or who sign nothing at all and later recognise the consequences, face a process that is cumbersome, costly, and uncertain in outcome. A court is not obliged to grant the application, and the interests of third-party creditors will always be a consideration in the analysis.
The contract you sign before your marriage is the most legally certain way to structure your financial arrangement. Revisiting it later is possible, but it is always the harder road.
An antenuptial contract is one of the most consequential legal documents you will ever sign, and it deserves the same care and attention you give to the marriage itself. The choice between the accrual system and full exclusion is a financial framework that will govern your estate, your debts, your business interests, and your rights at dissolution, whether that comes through divorce or death.
Our attorneys draft and execute antenuptial contracts with the precision this document demands, ensuring yours is correctly structured, properly executed, and registered in accordance with the Matrimonial Property Act 88 of 1984.
Contact our offices to discuss your options before your wedding day.
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