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YOUR MARITAL REGIME CHOICES BEFORE GETTING MARRIED - different antenuptial contracts compared
Explore your matrimonial property regime options before getting married. You must choose one before getting married. Your choice will have financial and legal consequences. You are therefore urged to carefully consider your options. If you still have questions message us or book a free 20 min consultation with our attorney. Get Started - Explore your options.
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F.A.Q - Antenuptial Contracts
What is an Antenuptial Contract (ANC)?
An Antenuptial Contract is a legal agreement signed before marriage that determines your matrimonial property regime. It prevents your estates from merging into a single "Joint Estate," protecting you from your partner's pre-existing debts.
How much does an Antenuptial Contract cost?
We charge an all-inclusive fee of R1950 to draft and register your Antenuptial Contract. This fee is fixed with no hidden costs and includes the consultation, drafting, and registration at the Deeds Office.
Do we have to wait for registration before we marry?
No. Once you sign the contract at our office, our Notary Public issues a special certificate for your marriage officer. This certificate allows the wedding to proceed immediately while we handle the formal registration.
Why should we consider an antenuptial contract?
Important reasons to sign a prenuptial agreement before walking down the aisle.
- You are Marrying Someone with Significant Debt.
- You Wish to Protect Your Assets.
- You Want to Ensure Financial Security for Both Parties.
- You Want to Protect Your Business.
- Both parties need financial freedom to trade.
How do we get our contract after registration?
We ill notify you when we have received the orinal antenuptial contract from the Registrar of Deeds. You can either pick up the document in perso from our offices or arrange with us to Postnet or Courier the document. We will charge courier or postnet fees if applicable.
How do we get our contract after registration?
We will notify you once the original is returned from the Registrar of Deeds. You can collect it in person from our Pretoria office, or we can arrange secure delivery via Postnet or Courier at your request.
How do I get to your offices?
We are located within the Northern Pavilion of Loftus Versveld Stadium. Us the same entrance as the Loftuspark shopping centre. Either park on top or use the basement parking facilities. Free safe parking for 2 hours. Enter gate 12 (Northern Pavilion). Click here for a link to Google Maps.
Why should we use Louwrens Koen Attorneys to register our Antenuptial contract?
With over 25 years of experience and thousands of registered contracts, we are established specialists in South African matrimonial law. Our proximity to the Pretoria Deeds Office ensures the fastest possible processing times.
Which Matrimonial Property Regime is Best for Us?
Choosing the right marriage contract depends on your financial goals, business interests, and how you wish to protect each other's futures. In South Africa, there are three primary options.
1. Marriage In Community of Property (The Default)
If you marry without signing an Antenuptial Contract (ANC), you are automatically married In Community of Property.
This is the most popular choice for modern South African couples.
1. Marriage In Community of Property (The Default)
If you marry without signing an Antenuptial Contract (ANC), you are automatically married In Community of Property.
- Best for: Couples with similar assets and no high-risk business interests.
- The Risk: You share 100% of all assets and all debts. If one spouse is sued or becomes insolvent, the entire joint estate is at risk.
This is the most popular choice for modern South African couples.
- Best for: Most couples in which one spouse might stay home to raise children or in which career growth may differ over time.
- How it works: You keep your separate assets owned before marriage, but you share the wealth built during the marriage. It provides a fair "safety net" for the lower-earning spouse upon divorce or the death of a spouse.
- Best for: Second marriages, older couples with established separate wealth, or high-risk business owners.
- How it works: What is yours remains yours, and what is your spouse's remains theirs. There is no sharing of assets or growth, regardless of how long the marriage lasts.
What happens if I get married without an Antenuptial Contract (ANC)?
In South Africa, if you do not sign and register an Antenuptial Contract before your wedding day, your marriage automatically defaults to In Community of Property.
While this is often seen as a "traditional" partnership, it is the most legally and financially risky regime because it merges your financial lives into a single Joint Estate.
The 3 Major Risks of the Default System:
While this is often seen as a "traditional" partnership, it is the most legally and financially risky regime because it merges your financial lives into a single Joint Estate.
The 3 Major Risks of the Default System:
- Total Joint Liability for Debt: You become 100% responsible for your spouse's debts—even those they incurred before you met. If your spouse fails to pay a credit card, a car loan, or a business debt, creditors can legally seize your salary and your assets to settle the balance.
- Insolvency & Sequestration: Because there is only one estate, if your spouse is declared insolvent or their business goes bankrupt, the entire joint estate is sequestrated. You could lose your home and savings due to your partner’s financial misfortune, even if you were not involved in their business.
- Loss of Financial Independence: You lose the right to conduct major financial transactions on your own. In terms of the Matrimonial Property Act, you generally require your spouse’s written consent to:
- Sell or mortgage immovable property (like your home).
- Enter into credit agreements or take out large loans.
- Sign as a surety for someone else.
Is a "Prenup" the same as an Antenuptial Contract?
In South Africa, the terms are often used interchangeably, but legally, the correct term is an Antenuptial Contract (ANC). While "Prenup" is popular in American media, South African law requires an ANC to be formally executed before a Notary Public and registered at the Deeds Office to be legally binding against third parties (such as banks or creditors).
When must we sign the ANC?
The contract must be signed before the marriage ceremony. Once you have signed the marriage register and said "I do," it is legally too late to enter into an ANC. If you miss this window, you are automatically married In Community of Property, and changing this status later requires a costly and complex High Court application for a Postnuptial Contract.
Does an ANC have to be registered?
Yes. To protect your assets from your spouse’s creditors, the contract must be registered at the Deeds Office.
What is "Accrual" in plain English?
Think of the Accrual System as a "Fairness Formula." * What you bring in: Assets you owned before the marriage remain yours (your "Commencement Value").
- What you build together: The growth in wealth achieved during the marriage is shared 50/50 if the marriage ends. It ensures that if one spouse earns less or stays home to raise children, they still benefit from the financial success the couple achieved as a team.
What if one spouse has a business?
Protecting a business is the most common reason for an ANC. If you are married In Community of Property and your business faces financial trouble, your spouse’s personal assets can be seized by your business creditors. By choosing a marriage Out of Community of Property (with or without accrual), you create a "legal wall" that protects your spouse’s home, car, and savings from your business risks and insolvency.
Which Regime Suits You?
- ANC With Accrual: Best for couples starting their careers or planning a family. It allows you to keep pre-marriage assets separate while sharing the wealth built together during the marriage.
- ANC Without Accrual: Best for second marriages or older couples with established, high-value separate estates. It ensures 100% financial independence with no sharing of growth upon divorce or death.
- In Community of Property: The 'Default' (and riskiest) choice. It merges all assets and debts into one joint estate, leaving both parties vulnerable to each other's financial losses."
Key Considerations Before Signing an Antenuptial Contract
Before entering into an antenuptial contract, it’s essential to carefully consider the following:
- Communication: Discuss your expectations, financial goals, and concerns openly with your partner.
- Fairness: Ensure that the terms of the contract are fair and reasonable for both parties.
- Long-term Impact: Consider how the chosen property regime will affect your financial situation over the long term, especially if the marriage ends or one spouse passes away.
How long does an Antenuptial Contract remain valid?
An ANC remains valid for the entire duration of the marriage. It only ceases to have effect upon a final decree of divorce or the death of a spouse.
How long does it take to draft an ANC?
At Louwrens Koen Attorneys, we typically draft a standard ANC within 24 to 48 hours. Complex contracts involving offshore assets or intricate business exclusions may take longer.
Can we change our marriage contract if we are already married?
Yes. You can change your matrimonial regime from "In Community of Property" to "Out of Community of Property" via a Postnuptial Contract. This requires a High Court application to authorize the change and protect your creditors.
How long does a Postnuptial Contract take?
The process typically takes 3 to 5 months. This includes drafting the court application and advertisement, notifying creditors, and obtaining a High Court Order before our Notary registers the new contract.
Is a Postnuptial Contract expensive?
Because it involves a High Court application and legal notices, it is more expensive than an ANC. We provide a fixed-fee quotation that covers the entire process from court to registration. The fee will range between R15000 - R25000, depending on your circumstances.
Why does a Postnuptial Contract cost much more than a Antenuptial contract?
The parties need the approval of the High Court to register a postnuptial contract. This means drafting a motion application to court, notifying various parties, advertisements and briefing an advocate to petition the court. Thereafter with the permission of the court (court order) the parties may appear before the Notary Public to execute a Postnuptial Contract that is registered in the office of the Registrar of Deeds. Before marriage, the parties simply execute an antenuptial contract before a Notary Public without the High Court's permission. Our typical costs for an antenuptial contract are R1450 and R15 000 for a Postnuptial contract.
How long does the process take to register a postnuptial contract?
Typically, it takes 3 - 4 months to acquire the High Court order and 7 -14 working days for the registration of the postnuptial contract.
What is the main reasons why couples consider the registration of an Postnuprial Contract.
- Freedom to trade.
- Exposing spouse to creditors and business risk.
- Risk of joint estate at death of either spouse.
- Parties cannot do effective Estate or Tax planning being married in community of property.
- Being married in community of property causes friction in the marriage.
- Parties entered into an antenuptial contract before marriage but the contract was nor registered in time or at all.
- The parties will not be held liable for the debts of a spouse that such spouse may have incurred after registration of the postnuptial contract.
- The parties will not be held liable for the debts of a spouse that such spouse may incur after registration of the postnuptial contract.
- Assets may be protected, particularly if one of the spouses has a business in his or her own name. The parties may decide to register assets such as their residential property in the name of only one spouse, being the spouse with the lowest risk profile. The assets of each spouse will also be safe if the other spouse is sequestrated.
- One or both spouses may have assets prior to the marriage that they want to exclude from the joint estate.
- Spouses may enter commercial transactions without the consent of their spouse.
- Each spouse retains control over his or her assets, builds his or her own estate and is responsible for his or her own debts.
Is a postnuptial agreement a good idea?
The Bottom Line. In certain marital situations, a postnuptial contract is strongly recommended for spouses who didn't sign a antenuptial contract. Signing and entering into a Postnuptial agreement may hold significant benefits for both spouses.
The most common consequences of a postnuptial agreement and marriage out of community of property are as follows:
The most common consequences of a postnuptial agreement and marriage out of community of property are as follows:
- The parties will not be held liable for the debts of a spouse that such spouse may have incurred after registration of the Postnuptial Contract.
- Assets may be protected, particularly if one of the spouses has a business in his or her own name. The parties may decide to register assets such as their residential property in the name of only one spouse, being the spouse with the lowest risk profile. The assets of each spouse will also be safe if the other spouse is sequestrated.
- One or both spouses may have assets prior to the marriage that they want to exclude from the joint estate.
- Spouses may enter into commercial transactions without the consent of their spouse.
- Each spouse retains control over his or her assets, builds his or her own estate and is responsible for his or her own debts after registration of the Postnuptial Contract.
What is the difference between ANC with and without Accrual?
With Accrual means you share the wealth built during the marriage while keeping pre-marriage assets separate. Without Accrual means your estates remain completely separate forever—nothing is shared upon divorce or death.
Which marriage regime is best for business owners?
For business owners, Out of Community of Property (with or without accrual) is usually best. It protects your spouse’s assets if your business faces insolvency, as creditors cannot claim against your spouse’s separate estate.
Does an ANC protect me from my spouse's debt?
Yes. In a marriage Out of Community of Property, you are not responsible for debts your spouse incurred before or during the marriage. Your assets cannot be seized to pay for their creditors.
What happens if my spouse becomes insolvent?
Because your estates are separate, your personal assets are protected from your spouse's sequestration or insolvency. Only their portion of the estate can be claimed by creditors.
Can we exclude specific assets from the accrual?
Yes. You can list specific assets (like a family business, a house, or a retirement fund) in your Antenuptial Contract to be excluded from the accrual calculation upon divorce or death.
We don’t need an ANC if we trust each other.
While trust is important in a marriage, an antenuptial contract serves as a legal safeguard. No one can predict what might happen in the future, and an ANC ensures that both parties are protected in case of unforeseen circumstances, such as divorce or one partner’s passing.
An ANC is only for the wealthy
An antenuptial contract is not reserved for the wealthy. It is a crucial tool for anyone who wishes to safeguard their assets and protect their financial interests. Even if you don’t have significant wealth, an ANC can help avoid complications in case of divorce or the death of a spouse.
Can an ANC protect my future inheritance?
Yes. By default, an ANC "Out of Community of Property" ensures that your inheritance remains your separate property. You can also specifically list future inheritances as excluded assets in the contract to ensure they are never included in an accrual calculation.
Is my spouse entitled to half of my inheritance?
If you are married In Community of Property, your inheritance may fall into the joint estate unless the deceased's Will specifically excluded it. If you have an ANC, your inheritance is generally protected as a separate asset.
Can a Will override an Antenuptial Contract?
No. An ANC is a registered legal contract that dictates the ownership of assets. A Will can only deal with assets that actually belong to your estate according to your matrimonial regime.
Can you put an infidelity or 'cheating clause' in a South African ANC?
No. A clause permitting or penalizing adultery is considered contra bonis mores (against public policy) and is legally unenforceable in South Africa. The law does not allow spouses to contractually change the fundamental moral obligations of marriage.
Can an ANC force a spouse to stay at home and raise children?
No. Any clause that restricts a person’s right to choose their profession or forces them to stop working upon the birth of a child is invalid as it infringes upon constitutional freedoms and public policy.
Can I include a clause that automatically gives me custody of the children in a divorce?
No. In South Africa, the "Best Interests of the Child" principle is the supreme law. No contract can override the High Court’s role as the upper guardian of minors. Custody (care and contact) must be determined based on the child's circumstances at the time of divorce, not by a pre-marriage agreement.
Can we agree in our ANC that neither of us will ever claim Spousal Maintenance?
While you can express your intention to be self-sufficient, a clause that completely waives a spouse's right to claim maintenance in the future is often viewed with skepticism by the courts. If a spouse is left destitute, the court has the statutory power under the Divorce Act to override such a clause to ensure social justice.
Can we include a "Lifestyle Clause" regarding weight gain or household chores?
No. Unlike some celebrity prenups in the United States, South African courts generally view "lifestyle clauses"—such as those dictating a spouse's weight, appearance, or the frequency of household chores—as contra bonis mores. These infringe upon individual dignity and bodily autonomy and are legally unenforceable.
Can I include a clause in my ANC requiring my spouse to convert to my faith?
No. Under South African law, a clause requiring a spouse to adopt, convert to, or maintain a specific religion or faith is considered contra bonis mores (against public policy) and is legally unenforceable.
Section 15 of the Constitution protects the right to freedom of conscience, religion, thought, belief, and opinion. Therefore, you cannot "contract away" your partner's right to choose their faith. If such a clause is included, a court will strike it out as null and void, though the rest of the Antenuptial Contract will typically remain valid.
Section 15 of the Constitution protects the right to freedom of conscience, religion, thought, belief, and opinion. Therefore, you cannot "contract away" your partner's right to choose their faith. If such a clause is included, a court will strike it out as null and void, though the rest of the Antenuptial Contract will typically remain valid.
Can any lawyer attest my Antenuptial Contract?
No. Only an admitted and practising Notary Public is authorised to execute an Antenuptial Contract. While many attorneys are also Notaries, the document must be signed in their specific capacity as a Notary, and they must affix their official seal of office to the deed for it to be valid.
What happens if we only sign the ANC on the morning of our wedding?
This is legally permissible, provided the contract is signed before the marriage ceremony is solemnised. In such cases, our Notary will record the exact time of execution (e.g., 09:00 AM) to prove that the contract preceded the wedding. However, we recommend signing at least a week in advance to avoid unnecessary stress.
Can we sign the contract if one of us is currently overseas?
es. If a spouse cannot appear in person at our Pretoria offices, they can sign a special Power of Attorney. This document authorises a representative to appear before the Notary and sign the ANC on their behalf. This is a common service we provide for international couples.
Is an unregistered antenuptial contract valid and binding?
It is valid inter partes (between the two of you), but it has no force or effect against third parties (like banks or creditors). Without registration at the Deeds Office within the 3-month deadline, you are legally considered to be married In Community of Property by the outside world. To fix this, a costly High Court application is required.
Does it matter which Deeds Office we use for registration?
No. An ANC registered in any Deeds Registry in South Africa—such as the Pretoria Deeds Office—is operative and valid throughout the entire country. At Louwrens Koen Attorneys, we handle the entire lodgement process at the Pretoria registry for your convenience.
If I donate a car or house to my spouse in our ANC, do we have to pay Donations Tax?
In South Africa, donations between spouses are exempt from Donations Tax in terms of Section 56(1)(b) of the Income Tax Act. This makes the Antenuptial Contract an incredibly tax-efficient tool for transferring assets and balancing your respective estates before or during your marriage.
How does an ANC donation protect us if one of us goes sequestered (bankrupt)?
Under Section 27 of the Insolvency Act, if an asset was donated to a spouse in a duly registered ANC in "good faith" (at least two years before insolvency), that asset is generally protected from the creditors of the insolvent spouse. It serves as definitive proof that the property belongs to the solvent spouse’s separate estate.
What happens to donated assets if we get a divorce?
Assets donated in an ANC are generally considered the exclusive property of the receiving spouse. Because they are typically excluded from the accrual calculation, they remain with the "donee" (the person who received the gift) and are not split 50/50, provided the clause was drafted correctly by your Notary.
We received a lot of cash as wedding gifts; who does that money belong to?
Without a specific clause in your ANC, cash gifts are often seen as "joint property" if it isn’t clear who the intended recipient was. By including a Wedding Gift Donation Clause, you can legally stipulate that all cash and physical gifts are the sole property of one spouse, preventing any future disputes or attachment by creditors.
How is accrual calculated in a South African divorce?
Accrual is calculated by subtracting the commencement value (adjusted for inflation using the CPI) from the end value of each spouse's estate. The spouse whose estate shows the smaller growth is entitled to half of the difference between the two accruals. Certain assets, like inheritances and personal injury damages, are excluded by law.
Can I exclude specific assets from the accrual system?
Yes. Under the Matrimonial Property Act, spouses can expressly exclude specific assets (like a pre-existing business or family farm) in their Antenuptial Contract. These assets, and any growth related to them, will not be shared upon the dissolution of the marriage.
Does the "Commencement Value" in my ANC increase over time with inflation?
Yes. To ensure fairness, the law requires that the commencement value declared in your Antenuptial Contract be adjusted using the Consumer Price Index (CPI). This ensures that the "real value" of what you brought into the marriage is compared to the value of your estate at the time of dissolution, preventing inflation from creating an artificial accrual.
What happens if my estate has a "Negative Accrual" (I have more debt than assets)?
If your estate has decreased in value or you have more debt than assets, your accrual is deemed to be zero. You cannot have a "negative accrual" that reduces your spouse's growth. In this scenario, you would still be the spouse with the smaller growth and would likely have a claim against your partner’s larger accrual.
If I use an inherited (excluded) sum of money to buy a house, is the house also excluded?
This is a common pitfall. To ensure the house remains excluded, you must clearly "trace" the funds and ideally state in your ANC (or a later addendum) that assets acquired with excluded funds remain excluded. Without clear drafting by a Notary, the growth in the house's value might inadvertently be included in the accrual calculation.
Can we choose to have a 70/30 split of the accrual instead of 50/50?
Absolutely. While the default is an equal 50% share of the difference, the Matrimonial Property Act allows for "Freedom of Contract." You can specify any percentage or even a capped amount in your ANC. This is often used when one spouse contributes significantly more initial capital or has a specialised business interest.
How are pension funds and retirement annuities treated in the accrual?
Under current South African law, your "pension interest" is considered an asset in your estate. Therefore, the value of your retirement savings accumulated during the marriage forms part of your accrual. If you wish to keep your pension entirely separate, this must be expressly excluded in your Antenuptial Contract.
Does having an Antenuptial Contract mean you expect to divorce?
No. In South Africa, an ANC is primarily a tool for debt and insolvency protection. It ensures that if one spouse’s business or finances fail, the other spouse’s assets (like the family home) remain safe from creditors. It is an "insurance policy" for the marriage's financial health, not a prediction of its failure.
Is an Antenuptial Contract unfair to the spouse who earns less?
Quite the opposite. With the Accrual System, the law ensures that the spouse who may earn less or stay at home to raise children is entitled to share in the wealth built during the marriage. This creates a more equitable outcome than being married "In Community of Property," where one spouse's debt can ruin both parties.
If we don’t have an ANC, does it mean we "share everything" in a good way?
While being married In Community of Property sounds romantic, it means you share 100% of the risk. If your spouse is sued, loses a business, or defaults on a loan, your personal savings and assets are legally "fair game" for their creditors. An ANC allows you to share your lives and your love without the unnecessary risk of shared financial ruin.
Can an Antenuptial Contract be changed later if we change our minds?
It is possible, but it is a complex and expensive legal process. To change from "In Community" to "Out of Community" (or vice versa) after the wedding, you must make a formal Section 21 Application to the High Court. This involves legal fees, advertising for creditors, and court costs. It is far more cost-effective to get the right contract in place before you say "I do."
Can I apply for an ANC online for a customary marriage?
Yes. At Louwrens Koen Attorneys, you can apply online for your Antenuptial Contract even if you have already started lobola negotiations. As long as the traditional celebrations are not yet "celebrated" or finalized, you can still secure an ANC to be married Out of Community of Property.
Does paying "Lobola" mean we are already legally married?
Not necessarily. While lobola is a crucial part of the negotiations, the law requires that the marriage be "negotiated, entered into, and celebrated." If you have only paid a portion of the lobola and the bride has not yet been "handed over" to the groom's family in a traditional ceremony, the marriage is often not yet complete. Best to conclude an antenuptial contract before payment of lobolao ensure you are married Out of Community of Property.
Can we still get an ANC if we have been living together as "customary husband and wife" for years but never registered at Home Affairs?
If your traditional ceremony took place after 15 November 2000, you are already legally married In Community of Property, even without a Home Affairs certificate. In this case, you cannot simply sign an ANC. You must follow a Section 21 High Court application to change your marital regime. At Louwrens Koen Attorneys, we have assisted over 10,000 couples with these complex transitions.
What happens to our customary marriage if we decide to have a "White Wedding" (Civil Marriage) later?
Under the Recognition of Customary Marriages Act, a couple in a monogamous customary marriage can later enter into a civil marriage with each other. However, you cannot enter into a civil marriage with a different person while a customary marriage exists. It is vital that your ANC is registered before the first of these two ceremonies takes place to protect your separate estates.
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Getting Married? - Handy Hints to get the DIFFICULT TOPIC OF AN ANTENUPTIAL Contract going
Discussing the necessity of an antenuptial contract may be a difficult discussion to have with your intended spouse. Because your choice will have significant legal and financial implications it is essential for the parties to explore their options before getting married.
It is also evident that there are misconceptions and antagonism about and against antenuptial contracts. As one lady eloquently stated, "We love each other! We don't need it". It was, however, very telling when this young lady's mother came back later to collect a brochure.
It is also saddening for the writer when he consults with couples married in community of property to see the devastation caused when they lose everything due to not taking the time to plan and mitigate their risks.
We understand that to the bride and groom, marriage is a loving contract between two people, as it should be, who want to spend the rest of their lives together. In the eyes of the Law and corporate business, marriage is also a contract between two people not about love, the matrimonial property regime they choose before getting married regulates a variety of economic rights, freedom to trade, exposure and obligations.
Should you thus not elect yourself, the Law will decide on your behalf. If you care about your spouse, you, therefore, owe it to yourself and your spouse to take the time to explore your options. Agreeing beforehand on these matters will put your marriage on a sounder footing.
It's hard to talk about marriage as if it were "business," but when it comes to creating a prenuptial agreement, that's precisely the approach you should take. A prenuptial agreement isn't a plan to leave or evidence of a lack of faith in the relationship. It merely is legal protection against the future risk you may be exposed to.
Start the conversation well before getting married
Don't wait until a week before your wedding to discuss a prenuptial agreement with your intended. Explore the topic early in a relationship, if possible, before you become engaged.
Don't assume you are on the same page with your intended spouse.
People have all kinds of notions about antenuptial contracts from their own experiences and subjective view. Don't assume that you and your spouse-to-be are on the same page with this topic; ask.
Use your head. Not your heart.
It's tough to talk about your loving, committed relationship as if it were a business arrangement. If you and your intended can agree to be logical (rather than emotional) about preparing an antenuptial contract, you'll find it much more manageable.
Always consult your Attorney.
If your spouse-to-be is hesitant, suggest that they consult a legal professional to explore the benefits. You may find iso consult with a legal professional to understand the different k might be covered in an antenuptial contract. The more informed you are, the easier it will be to explain things to your intended.
Whatever your decision may be. Please take the time to consider your options. Also, could you consider changing or amending your will and estate planning when getting married?
Louwrens Koen Attorneys have assisted thousands of couples with choosing the appropriate antenuptial contract. Please do not hesitate to contact us.
Louwrens Koen - Practicing Attorney, Conveyancer and Notary Public.
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wHAT ARE THE DEFINITION AND PURPOSE OF AN ANTENUPTIAL CONTRACT?
Definition and purpose of an Antenuptial Contract - An antenuptial contract arranges the matrimonial property system of spouses. It is concluded between two unmarried persons who are legally competent to enter into a marriage with each other. The contract must be followed by a marriage to have any force and effect whatsoever.
The purpose of an antenuptial contract is to exclude the community of property and profit and loss as well as to include or exclude the accrual system from the marriage.
The purpose of an antenuptial contract is to exclude the community of property and profit and loss as well as to include or exclude the accrual system from the marriage.
consequances of marriage that cannot bealtered by an antenuptial contract
Certain consequences of a marriage cannot be avoided, even by including a diverse clause in the antenuptial contract, for example:
• The obligation to have a joint household and to live together as man and wife.
• The obligation to treat each other with decency, fairness and respect.
• The obligation to allow each other the privileges of marriage.
• The obligation to be loyal and committed to each other.
• That both parties will attain and retain full legal capacity (in the case that one of or both parties are minors).
• The obligation to have a joint household and to live together as man and wife.
• The obligation to treat each other with decency, fairness and respect.
• The obligation to allow each other the privileges of marriage.
• The obligation to be loyal and committed to each other.
• That both parties will attain and retain full legal capacity (in the case that one of or both parties are minors).
Formalities regarding the registration of an Antenuptial Contract
An antenuptial contract must be executed in the presence of practising and admitted notary, who must not have a personal interest in the contract. The notary must affix his seal of office or embossing seal on the contract's last page, and the inner pages must be initialled. It is general practice to refer to the notary’s protocol number in the antenuptial contract.
The two intended spouses must sign the contract before two competent witnesses of at least 14 years of age who can give evidence in court. The place of execution must be stated in the contract, and if the parties sign on different dates, the latest date will be regarded as the date of the contract. If a third person is included in the contract, they must also sign it. Antenuptial contracts executed in South Africa must be registered in the office of the Registrar of Deeds within three months of the date of execution or within such an extended period as the court may allow if the application is made. Contracts executed outside South Africa must be attested by a notary and legalised and registered in a deed's registry within six months of the date of execution.
If a contract is not registered within the stipulated time, it will have no force or effect against third parties but will be valid between them. Registration of an antenuptial contract in any of the offices of the Registrar of Deeds is effective throughout South Africa.
The two intended spouses must sign the contract before two competent witnesses of at least 14 years of age who can give evidence in court. The place of execution must be stated in the contract, and if the parties sign on different dates, the latest date will be regarded as the date of the contract. If a third person is included in the contract, they must also sign it. Antenuptial contracts executed in South Africa must be registered in the office of the Registrar of Deeds within three months of the date of execution or within such an extended period as the court may allow if the application is made. Contracts executed outside South Africa must be attested by a notary and legalised and registered in a deed's registry within six months of the date of execution.
If a contract is not registered within the stipulated time, it will have no force or effect against third parties but will be valid between them. Registration of an antenuptial contract in any of the offices of the Registrar of Deeds is effective throughout South Africa.
Formalities to enter into a valid marriage
The parties must have the appropriate capacity to enter into a valid marriage. For marriages under the Marriage Act 1961, minors between the age of puberty and the age of majority must have the consent of both parents or a guardian. If the minor has only one parent living, only that parent's consent is required. Where the minor has a guardian, the guardian's consent is needed. If the minor has no parent or guardian, permission must be obtained from the Commissioner of Child Welfare. Additional consent is required from the Minister of Home Affairs if the male minor is under the age of 18 and the female is under the age of 15. For marriages and civil partnerships under the Civil Union Act, the age of consent is 18.
In terms of common law, insane persons cannot enter into a valid marriage. This is due to their lack of understanding of the nature of the juristic act and the obligations that marriage creates. Where a person marries whilst they are already validly married to someone else, the second marriage will be bigamous and therefore void. Bigamy is a criminal offence. Both parties must have the intention to conclude a marriage as understood by the law.
This is evidenced by their declarations to the marriage officer during the marriage ceremony. Consensus will be excluded by a material mistake as to the spouse's identity or the nature of the juristic act, duress or undue influence, or prenuptial stuprum. The law also prohibits marriage between certain blood relations (relationship of consanguinity) and certain persons related through marriage (relationship of affinity). Marriages within these prohibited degrees of relationship are not valid and are in fact, void.
The formal requirements for entering a valid marriage are contained in the Marriage Act (25 of 1961) and the Civil Union Act (17 of 2006). A duly appointed marriage officer must solemnise the marriage, each party must produce an identity document or an affidavit in the prescribed form, and a minor must produce written consent of their parent(s) or guardian. The marriage officer must solemnise the marriage according to the prescribed formula in the presence of the two parties to the marriage and in the presence of two witnesses. All marriages must be registered. If the prescribed formalities are not complied with, the marriage is void marriage.
PACTUM SUCCESSORUM
Succession clauses in antenuptial contracts explained.
Succession Clauses in an Antenuptial Contract
In most instances, agreements concerning inheritance are not legally enforceable. However, succession clauses in an antenuptial contract form a key exception to this general rule. These clauses allow spouses to agree that, upon the death of one party, the surviving spouse will inherit the entire estate—or a specified portion—of the first to die. Importantly, once a succession clause is included in the antenuptial contract, it cannot be revoked unilaterally in a later will. Any changes require the written consent of the spouse who stands to benefit. Below are a couple of standard examples of such clauses:
“The parties declare that on the death of either of them, the survivor shall be entitled to the whole estate of the first dying.” “The parties declare that upon the first death of them, all assets belonging to the deceased spouse shall pass to the surviving spouse.”
In addition to succession clauses, an antenuptial contract may include other testamentary provisions, such as:
- Revocation of previous wills
- Appointment of executors and heirs
- Establishment of a mortis causa trust.
Including a Third Party in a n Antenuptial Contract
It is also possible for a third party to bequeath property to one or both spouses within an antenuptial contract. In such a case, the third party must be joined as a signatory to the contract and sign it in the presence of a notary. Once included, the third party cannot unilaterally revoke the bequest without the consent of the spouse(s) benefiting under the clause. Through these provisions, an antenuptial contract can serve not just as a tool for regulating matrimonial property regimes but also for setting out detailed testamentary instructions—ensuring clarity and legal certainty for all parties involved.
The section 6(1) Statement
Declaring nett commencement value in a separate document not registered in the office of the Registrar of Deeds
Section 6(1) of Act 88 of 1984 provides that parties may declare the net commencement values of their respective estates within six months of the commencement of the marriage. If the parties did not state the net commencement values of their respective estates in the antenuptial contract, they may execute a statement in accordance with this section. The statement is not required to be lodged and registered at the deeds office and is instead held by the notary in their protocol. High nett-worth individuals usually do not want to declare their nett asset worth in a public document.
Unenforceable Clauses in a Marriage Contract
According to Louwrens Koen Attorneys, clauses in a marriage contract (ANC) may be deemed unenforceable if they are against public policy, against the good morals of the public, unreasonable, prohibited by law, or aim to take over the powers of the court. These clauses will be null and void.
Examples of unreasonable clauses in a marriage contract include:
- Prohibiting a spouse from working
- Forcing a spouse to live in a specific area
- Requiring marital disputes to be resolved through arbitration
- Obligating a spouse to adopt the religion of the other spouse
- Stating that the spouses will not live together after the marriage
- Preventing either spouse from seeking a forfeiture or share in the other's estate after a divorce.
Clauses against public policy include:
- Enforcing a change in religion, gender, or race
- Prohibiting association
- Allowing or forcing a spouse to commit a crime.
Clause to deter infidelity: A clause in an ANC that aims to prevent infidelity by a spouse is enforceable if it seeks to preserve the marriage by discouraging extramarital affairs. For example, if a clause states that the husband will pay the wife a fixed property or cash amount if it is proven that he caused a future divorce through an extramarital affair, the court may enforce this clause.
Warning: Why Buying a Cheap ANC PDF Template is Legally Worthless Without Registration
In South Africa, the internet is flooded with websites selling "Antenuptial Agreement Templates" for R800 to R1300. They promise "financial transparency" and "asset protection."However, there is a dangerous secret these sites won't tell you: A template is not an Antenuptial Contract. In South African law, an Antenuptial Contract (ANC) is a Notarial Deed. It does not exist as a legal entity until it is signed before a Notary Public and registered in the Deeds Office. If you buy a template and sign it at home, you are In Community of Property the moment you say "I do"—and that template will be rejected by every court and bank in the country.
Your marriage is a lifelong partnership; don't start it with a "DIY" legal risk. At Louwrens Koen Attorneys, we don't just give you a template. We provide legal expertise, Notarial signing, and physical registration at the Pretoria Deeds Office. We ensure that your contract is not just a "template," but a valid registered contract
.[Click Here to Start a Registered ANC Application - R1950 All-Inclusive]
Getting Married? Reasons to register an antenuptial contract. R1950 All-Inc
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The Strategic Benefits of an ANC:
- Debt Protection: You are never liable for your spouse’s debts—whether incurred before or during the marriage.
- Business Security: If you own a business, an ANC creates a legal wall that prevents business creditors from seizing your spouse’s home or savings.
- Insolvency Safeguard: Your personal assets remain 100% safe if your spouse faces sequestration or financial failure.
- Financial Freedom: You can enter into commercial transactions, buy property, or sign contracts without needing your spouse’s written consent.
- Asset Exclusions: Keep pre-marital assets, future inheritances, or family trusts entirely separate from the marital estate.
Our fee is transparent and covers the entire professional process:
- Drafting (24-48 hour turnaround).
- Notarial Execution (Signing before a Notary Public).
- Deeds Office Registration (Physical lodgment at the Pretoria Deeds Office).
- Marriage Officer Certificate (Issued immediately upon signing).
Next Steps
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All Inclusive Fee to register Antenuptial Contract
Antenuptial Contract - Register
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- Online Application Form Antenuptial Contract - Our Process - Get Started
- Complete the online form as thoroughly as possible and submit. We will supply you with an pro forma contract within 24 hours. This document can be used as a discussion document and can be changed by us to suit your needs. Once satisfied sign the contract and return to us by hand, Postnet or Courier. We will supply detailed instructions. Contact us anytime if you have any questions.
- Congratulations on your pending nuptials. Start your journey.
Online Application - Get Started
Complete the online form as thoroughly as possible and submit. We will supply you with an pro forma antenuptial contract within 24 hours. This document can be used as a discussion document and can be changed by us to suit your needs if necessary. Once satisfied sign the contract and return to us by hand, POSTNET or Courier. We will supply detailed instructions.
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About Our Antenuptial Contract Registration Service
12 Years running - Thousands of couples assisted using our online application process.
Louwrens Koen Attorneys have already assisted thousands of couples with their Antenuptial Contract registration needs.
Using our efficient online application form we have assisted thousands of couples. We pride ourselves in being approachable. Do not hesitate to contact us with your questions or schedule a free consultation. Louwrens Koen Attorneys
Using our efficient online application form we have assisted thousands of couples. We pride ourselves in being approachable. Do not hesitate to contact us with your questions or schedule a free consultation. Louwrens Koen Attorneys
Contact
- Louwrens Koen Attorneys 417 Kirkness Street, Sunnyside, Pretoria, South Africa
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Louwrens Koen Attorneys have assisted thousands of couples to register an antenuptial contract. We pride ourselves in being very approachable. As this will affect your legal status and is therefore an very important matter do not hesitate to contact with any questions you might have.
F.A.Q - Antenuptial Contracts
What is an Antenuptial Contract (ANC)?
An Antenuptial Contract is a legal agreement signed before marriage that determines your matrimonial property regime. It prevents your estates from merging into a single "Joint Estate," protecting you from your partner's pre-existing debts.
How much does an Antenuptial Contract cost?
We charge an all-inclusive fee of R1950 to draft and register your Antenuptial Contract. This fee is fixed with no hidden costs and includes the consultation, drafting, and registration at the Deeds Office.
Do we have to wait for registration before we marry?
No. Once you sign the contract at our office, our Notary Public issues a special certificate for your marriage officer. This certificate allows the wedding to proceed immediately while we handle the formal registration.
Why should we consider an antenuptial contract?
Important reasons to sign a prenuptial agreement before walking down the aisle.
- You are Marrying Someone with Significant Debt.
- You Wish to Protect Your Assets.
- You Want to Ensure Financial Security for Both Parties.
- You Want to Protect Your Business.
- Both parties need financial freedom to trade.
How do we get our contract after registration?
We ill notify you when we have received the orinal antenuptial contract from the Registrar of Deeds. You can either pick up the document in perso from our offices or arrange with us to Postnet or Courier the document. We will charge courier or postnet fees if applicable.
How do we get our contract after registration?
We will notify you once the original is returned from the Registrar of Deeds. You can collect it in person from our Pretoria office, or we can arrange secure delivery via Postnet or Courier at your request.
How do I get to your offices?
We are located within the Northern Pavilion of Loftus Versveld Stadium. Us the same entrance as the Loftuspark shopping centre. Either park on top or use the basement parking facilities. Free safe parking for 2 hours. Enter gate 12 (Northern Pavilion). Click here for a link to Google Maps.
Why should we use Louwrens Koen Attorneys to register our Antenuptial contract?
With over 25 years of experience and thousands of registered contracts, we are established specialists in South African matrimonial law. Our proximity to the Pretoria Deeds Office ensures the fastest possible processing times.
Which Matrimonial Property Regime is Best for Us?
Choosing the right marriage contract depends on your financial goals, business interests, and how you wish to protect each other's futures. In South Africa, there are three primary options.
1. Marriage In Community of Property (The Default)
If you marry without signing an Antenuptial Contract (ANC), you are automatically married In Community of Property.
This is the most popular choice for modern South African couples.
1. Marriage In Community of Property (The Default)
If you marry without signing an Antenuptial Contract (ANC), you are automatically married In Community of Property.
- Best for: Couples with similar assets and no high-risk business interests.
- The Risk: You share 100% of all assets and all debts. If one spouse is sued or becomes insolvent, the entire joint estate is at risk.
This is the most popular choice for modern South African couples.
- Best for: Most couples in which one spouse might stay home to raise children or in which career growth may differ over time.
- How it works: You keep your separate assets owned before marriage, but you share the wealth built during the marriage. It provides a fair "safety net" for the lower-earning spouse upon divorce or the death of a spouse.
- Best for: Second marriages, older couples with established separate wealth, or high-risk business owners.
- How it works: What is yours remains yours, and what is your spouse's remains theirs. There is no sharing of assets or growth, regardless of how long the marriage lasts.
What happens if I get married without an Antenuptial Contract (ANC)?
In South Africa, if you do not sign and register an Antenuptial Contract before your wedding day, your marriage automatically defaults to In Community of Property.
While this is often seen as a "traditional" partnership, it is the most legally and financially risky regime because it merges your financial lives into a single Joint Estate.
The 3 Major Risks of the Default System:
While this is often seen as a "traditional" partnership, it is the most legally and financially risky regime because it merges your financial lives into a single Joint Estate.
The 3 Major Risks of the Default System:
- Total Joint Liability for Debt: You become 100% responsible for your spouse's debts—even those they incurred before you met. If your spouse fails to pay a credit card, a car loan, or a business debt, creditors can legally seize your salary and your assets to settle the balance.
- Insolvency & Sequestration: Because there is only one estate, if your spouse is declared insolvent or their business goes bankrupt, the entire joint estate is sequestrated. You could lose your home and savings due to your partner’s financial misfortune, even if you were not involved in their business.
- Loss of Financial Independence: You lose the right to conduct major financial transactions on your own. In terms of the Matrimonial Property Act, you generally require your spouse’s written consent to:
- Sell or mortgage immovable property (like your home).
- Enter into credit agreements or take out large loans.
- Sign as a surety for someone else.
Is a "Prenup" the same as an Antenuptial Contract?
In South Africa, the terms are often used interchangeably, but legally, the correct term is an Antenuptial Contract (ANC). While "Prenup" is popular in American media, South African law requires an ANC to be formally executed before a Notary Public and registered at the Deeds Office to be legally binding against third parties (such as banks or creditors).
When must we sign the ANC?
The contract must be signed before the marriage ceremony. Once you have signed the marriage register and said "I do," it is legally too late to enter into an ANC. If you miss this window, you are automatically married In Community of Property, and changing this status later requires a costly and complex High Court application for a Postnuptial Contract.
Does an ANC have to be registered?
Yes. To protect your assets from your spouse’s creditors, the contract must be registered at the Deeds Office.
What is "Accrual" in plain English?
Think of the Accrual System as a "Fairness Formula." * What you bring in: Assets you owned before the marriage remain yours (your "Commencement Value").
- What you build together: The growth in wealth achieved during the marriage is shared 50/50 if the marriage ends. It ensures that if one spouse earns less or stays home to raise children, they still benefit from the financial success the couple achieved as a team.
What if one spouse has a business?
Protecting a business is the most common reason for an ANC. If you are married In Community of Property and your business faces financial trouble, your spouse’s personal assets can be seized by your business creditors. By choosing a marriage Out of Community of Property (with or without accrual), you create a "legal wall" that protects your spouse’s home, car, and savings from your business risks and insolvency.
Which Regime Suits You?
- ANC With Accrual: Best for couples starting their careers or planning a family. It allows you to keep pre-marriage assets separate while sharing the wealth built together during the marriage.
- ANC Without Accrual: Best for second marriages or older couples with established, high-value separate estates. It ensures 100% financial independence with no sharing of growth upon divorce or death.
- In Community of Property: The 'Default' (and riskiest) choice. It merges all assets and debts into one joint estate, leaving both parties vulnerable to each other's financial losses."
Key Considerations Before Signing an Antenuptial Contract
Before entering into an antenuptial contract, it’s essential to carefully consider the following:
- Communication: Discuss your expectations, financial goals, and concerns openly with your partner.
- Fairness: Ensure that the terms of the contract are fair and reasonable for both parties.
- Long-term Impact: Consider how the chosen property regime will affect your financial situation over the long term, especially if the marriage ends or one spouse passes away.
How long does an Antenuptial Contract remain valid?
An ANC remains valid for the entire duration of the marriage. It only ceases to have effect upon a final decree of divorce or the death of a spouse.
How long does it take to draft an ANC?
At Louwrens Koen Attorneys, we typically draft a standard ANC within 24 to 48 hours. Complex contracts involving offshore assets or intricate business exclusions may take longer.
Can we change our marriage contract if we are already married?
Yes. You can change your matrimonial regime from "In Community of Property" to "Out of Community of Property" via a Postnuptial Contract. This requires a High Court application to authorize the change and protect your creditors.
How long does a Postnuptial Contract take?
The process typically takes 3 to 5 months. This includes drafting the court application and advertisement, notifying creditors, and obtaining a High Court Order before our Notary registers the new contract.
Is a Postnuptial Contract expensive?
Because it involves a High Court application and legal notices, it is more expensive than an ANC. We provide a fixed-fee quotation that covers the entire process from court to registration. The fee will range between R15000 - R25000, depending on your circumstances.
Why does a Postnuptial Contract cost much more than a Antenuptial contract?
The parties need the approval of the High Court to register a postnuptial contract. This means drafting a motion application to court, notifying various parties, advertisements and briefing an advocate to petition the court. Thereafter with the permission of the court (court order) the parties may appear before the Notary Public to execute a Postnuptial Contract that is registered in the office of the Registrar of Deeds. Before marriage, the parties simply execute an antenuptial contract before a Notary Public without the High Court's permission. Our typical costs for an antenuptial contract are R1450 and R15 000 for a Postnuptial contract.
How long does the process take to register a postnuptial contract?
Typically, it takes 3 - 4 months to acquire the High Court order and 7 -14 working days for the registration of the postnuptial contract.
What is the main reasons why couples consider the registration of an Postnuprial Contract.
- Freedom to trade.
- Exposing spouse to creditors and business risk.
- Risk of joint estate at death of either spouse.
- Parties cannot do effective Estate or Tax planning being married in community of property.
- Being married in community of property causes friction in the marriage.
- Parties entered into an antenuptial contract before marriage but the contract was nor registered in time or at all.
- The parties will not be held liable for the debts of a spouse that such spouse may have incurred after registration of the postnuptial contract.
- The parties will not be held liable for the debts of a spouse that such spouse may incur after registration of the postnuptial contract.
- Assets may be protected, particularly if one of the spouses has a business in his or her own name. The parties may decide to register assets such as their residential property in the name of only one spouse, being the spouse with the lowest risk profile. The assets of each spouse will also be safe if the other spouse is sequestrated.
- One or both spouses may have assets prior to the marriage that they want to exclude from the joint estate.
- Spouses may enter commercial transactions without the consent of their spouse.
- Each spouse retains control over his or her assets, builds his or her own estate and is responsible for his or her own debts.
Is a postnuptial agreement a good idea?
The Bottom Line. In certain marital situations, a postnuptial contract is strongly recommended for spouses who didn't sign a antenuptial contract. Signing and entering into a Postnuptial agreement may hold significant benefits for both spouses.
The most common consequences of a postnuptial agreement and marriage out of community of property are as follows:
The most common consequences of a postnuptial agreement and marriage out of community of property are as follows:
- The parties will not be held liable for the debts of a spouse that such spouse may have incurred after registration of the Postnuptial Contract.
- Assets may be protected, particularly if one of the spouses has a business in his or her own name. The parties may decide to register assets such as their residential property in the name of only one spouse, being the spouse with the lowest risk profile. The assets of each spouse will also be safe if the other spouse is sequestrated.
- One or both spouses may have assets prior to the marriage that they want to exclude from the joint estate.
- Spouses may enter into commercial transactions without the consent of their spouse.
- Each spouse retains control over his or her assets, builds his or her own estate and is responsible for his or her own debts after registration of the Postnuptial Contract.
What is the difference between ANC with and without Accrual?
With Accrual means you share the wealth built during the marriage while keeping pre-marriage assets separate. Without Accrual means your estates remain completely separate forever—nothing is shared upon divorce or death.
Which marriage regime is best for business owners?
For business owners, Out of Community of Property (with or without accrual) is usually best. It protects your spouse’s assets if your business faces insolvency, as creditors cannot claim against your spouse’s separate estate.
Does an ANC protect me from my spouse's debt?
Yes. In a marriage Out of Community of Property, you are not responsible for debts your spouse incurred before or during the marriage. Your assets cannot be seized to pay for their creditors.
What happens if my spouse becomes insolvent?
Because your estates are separate, your personal assets are protected from your spouse's sequestration or insolvency. Only their portion of the estate can be claimed by creditors.
Can we exclude specific assets from the accrual?
Yes. You can list specific assets (like a family business, a house, or a retirement fund) in your Antenuptial Contract to be excluded from the accrual calculation upon divorce or death.
We don’t need an ANC if we trust each other.
While trust is important in a marriage, an antenuptial contract serves as a legal safeguard. No one can predict what might happen in the future, and an ANC ensures that both parties are protected in case of unforeseen circumstances, such as divorce or one partner’s passing.
An ANC is only for the wealthy
An antenuptial contract is not reserved for the wealthy. It is a crucial tool for anyone who wishes to safeguard their assets and protect their financial interests. Even if you don’t have significant wealth, an ANC can help avoid complications in case of divorce or the death of a spouse.
Can an ANC protect my future inheritance?
Yes. By default, an ANC "Out of Community of Property" ensures that your inheritance remains your separate property. You can also specifically list future inheritances as excluded assets in the contract to ensure they are never included in an accrual calculation.
Is my spouse entitled to half of my inheritance?
If you are married In Community of Property, your inheritance may fall into the joint estate unless the deceased's Will specifically excluded it. If you have an ANC, your inheritance is generally protected as a separate asset.
Can a Will override an Antenuptial Contract?
No. An ANC is a registered legal contract that dictates the ownership of assets. A Will can only deal with assets that actually belong to your estate according to your matrimonial regime.
Can you put an infidelity or 'cheating clause' in a South African ANC?
No. A clause permitting or penalizing adultery is considered contra bonis mores (against public policy) and is legally unenforceable in South Africa. The law does not allow spouses to contractually change the fundamental moral obligations of marriage.
Can an ANC force a spouse to stay at home and raise children?
No. Any clause that restricts a person’s right to choose their profession or forces them to stop working upon the birth of a child is invalid as it infringes upon constitutional freedoms and public policy.
Can I include a clause that automatically gives me custody of the children in a divorce?
No. In South Africa, the "Best Interests of the Child" principle is the supreme law. No contract can override the High Court’s role as the upper guardian of minors. Custody (care and contact) must be determined based on the child's circumstances at the time of divorce, not by a pre-marriage agreement.
Can we agree in our ANC that neither of us will ever claim Spousal Maintenance?
While you can express your intention to be self-sufficient, a clause that completely waives a spouse's right to claim maintenance in the future is often viewed with skepticism by the courts. If a spouse is left destitute, the court has the statutory power under the Divorce Act to override such a clause to ensure social justice.
Can we include a "Lifestyle Clause" regarding weight gain or household chores?
No. Unlike some celebrity prenups in the United States, South African courts generally view "lifestyle clauses"—such as those dictating a spouse's weight, appearance, or the frequency of household chores—as contra bonis mores. These infringe upon individual dignity and bodily autonomy and are legally unenforceable.
Can I include a clause in my ANC requiring my spouse to convert to my faith?
No. Under South African law, a clause requiring a spouse to adopt, convert to, or maintain a specific religion or faith is considered contra bonis mores (against public policy) and is legally unenforceable.
Section 15 of the Constitution protects the right to freedom of conscience, religion, thought, belief, and opinion. Therefore, you cannot "contract away" your partner's right to choose their faith. If such a clause is included, a court will strike it out as null and void, though the rest of the Antenuptial Contract will typically remain valid.
Section 15 of the Constitution protects the right to freedom of conscience, religion, thought, belief, and opinion. Therefore, you cannot "contract away" your partner's right to choose their faith. If such a clause is included, a court will strike it out as null and void, though the rest of the Antenuptial Contract will typically remain valid.
Can any lawyer attest my Antenuptial Contract?
No. Only an admitted and practising Notary Public is authorised to execute an Antenuptial Contract. While many attorneys are also Notaries, the document must be signed in their specific capacity as a Notary, and they must affix their official seal of office to the deed for it to be valid.
What happens if we only sign the ANC on the morning of our wedding?
This is legally permissible, provided the contract is signed before the marriage ceremony is solemnised. In such cases, our Notary will record the exact time of execution (e.g., 09:00 AM) to prove that the contract preceded the wedding. However, we recommend signing at least a week in advance to avoid unnecessary stress.
Can we sign the contract if one of us is currently overseas?
es. If a spouse cannot appear in person at our Pretoria offices, they can sign a special Power of Attorney. This document authorises a representative to appear before the Notary and sign the ANC on their behalf. This is a common service we provide for international couples.
Is an unregistered antenuptial contract valid and binding?
It is valid inter partes (between the two of you), but it has no force or effect against third parties (like banks or creditors). Without registration at the Deeds Office within the 3-month deadline, you are legally considered to be married In Community of Property by the outside world. To fix this, a costly High Court application is required.
Does it matter which Deeds Office we use for registration?
No. An ANC registered in any Deeds Registry in South Africa—such as the Pretoria Deeds Office—is operative and valid throughout the entire country. At Louwrens Koen Attorneys, we handle the entire lodgement process at the Pretoria registry for your convenience.
If I donate a car or house to my spouse in our ANC, do we have to pay Donations Tax?
In South Africa, donations between spouses are exempt from Donations Tax in terms of Section 56(1)(b) of the Income Tax Act. This makes the Antenuptial Contract an incredibly tax-efficient tool for transferring assets and balancing your respective estates before or during your marriage.
How does an ANC donation protect us if one of us goes sequestered (bankrupt)?
Under Section 27 of the Insolvency Act, if an asset was donated to a spouse in a duly registered ANC in "good faith" (at least two years before insolvency), that asset is generally protected from the creditors of the insolvent spouse. It serves as definitive proof that the property belongs to the solvent spouse’s separate estate.
What happens to donated assets if we get a divorce?
Assets donated in an ANC are generally considered the exclusive property of the receiving spouse. Because they are typically excluded from the accrual calculation, they remain with the "donee" (the person who received the gift) and are not split 50/50, provided the clause was drafted correctly by your Notary.
We received a lot of cash as wedding gifts; who does that money belong to?
Without a specific clause in your ANC, cash gifts are often seen as "joint property" if it isn’t clear who the intended recipient was. By including a Wedding Gift Donation Clause, you can legally stipulate that all cash and physical gifts are the sole property of one spouse, preventing any future disputes or attachment by creditors.
How is accrual calculated in a South African divorce?
Accrual is calculated by subtracting the commencement value (adjusted for inflation using the CPI) from the end value of each spouse's estate. The spouse whose estate shows the smaller growth is entitled to half of the difference between the two accruals. Certain assets, like inheritances and personal injury damages, are excluded by law.
Can I exclude specific assets from the accrual system?
Yes. Under the Matrimonial Property Act, spouses can expressly exclude specific assets (like a pre-existing business or family farm) in their Antenuptial Contract. These assets, and any growth related to them, will not be shared upon the dissolution of the marriage.
Does the "Commencement Value" in my ANC increase over time with inflation?
Yes. To ensure fairness, the law requires that the commencement value declared in your Antenuptial Contract be adjusted using the Consumer Price Index (CPI). This ensures that the "real value" of what you brought into the marriage is compared to the value of your estate at the time of dissolution, preventing inflation from creating an artificial accrual.
What happens if my estate has a "Negative Accrual" (I have more debt than assets)?
If your estate has decreased in value or you have more debt than assets, your accrual is deemed to be zero. You cannot have a "negative accrual" that reduces your spouse's growth. In this scenario, you would still be the spouse with the smaller growth and would likely have a claim against your partner’s larger accrual.
If I use an inherited (excluded) sum of money to buy a house, is the house also excluded?
This is a common pitfall. To ensure the house remains excluded, you must clearly "trace" the funds and ideally state in your ANC (or a later addendum) that assets acquired with excluded funds remain excluded. Without clear drafting by a Notary, the growth in the house's value might inadvertently be included in the accrual calculation.
Can we choose to have a 70/30 split of the accrual instead of 50/50?
Absolutely. While the default is an equal 50% share of the difference, the Matrimonial Property Act allows for "Freedom of Contract." You can specify any percentage or even a capped amount in your ANC. This is often used when one spouse contributes significantly more initial capital or has a specialised business interest.
How are pension funds and retirement annuities treated in the accrual?
Under current South African law, your "pension interest" is considered an asset in your estate. Therefore, the value of your retirement savings accumulated during the marriage forms part of your accrual. If you wish to keep your pension entirely separate, this must be expressly excluded in your Antenuptial Contract.
Does having an Antenuptial Contract mean you expect to divorce?
No. In South Africa, an ANC is primarily a tool for debt and insolvency protection. It ensures that if one spouse’s business or finances fail, the other spouse’s assets (like the family home) remain safe from creditors. It is an "insurance policy" for the marriage's financial health, not a prediction of its failure.
Is an Antenuptial Contract unfair to the spouse who earns less?
Quite the opposite. With the Accrual System, the law ensures that the spouse who may earn less or stay at home to raise children is entitled to share in the wealth built during the marriage. This creates a more equitable outcome than being married "In Community of Property," where one spouse's debt can ruin both parties.
If we don’t have an ANC, does it mean we "share everything" in a good way?
While being married In Community of Property sounds romantic, it means you share 100% of the risk. If your spouse is sued, loses a business, or defaults on a loan, your personal savings and assets are legally "fair game" for their creditors. An ANC allows you to share your lives and your love without the unnecessary risk of shared financial ruin.
Can an Antenuptial Contract be changed later if we change our minds?
It is possible, but it is a complex and expensive legal process. To change from "In Community" to "Out of Community" (or vice versa) after the wedding, you must make a formal Section 21 Application to the High Court. This involves legal fees, advertising for creditors, and court costs. It is far more cost-effective to get the right contract in place before you say "I do."
Can I apply for an ANC online for a customary marriage?
Yes. At Louwrens Koen Attorneys, you can apply online for your Antenuptial Contract even if you have already started lobola negotiations. As long as the traditional celebrations are not yet "celebrated" or finalized, you can still secure an ANC to be married Out of Community of Property.
Does paying "Lobola" mean we are already legally married?
Not necessarily. While lobola is a crucial part of the negotiations, the law requires that the marriage be "negotiated, entered into, and celebrated." If you have only paid a portion of the lobola and the bride has not yet been "handed over" to the groom's family in a traditional ceremony, the marriage is often not yet complete. Best to conclude an antenuptial contract before payment of lobolao ensure you are married Out of Community of Property.
Can we still get an ANC if we have been living together as "customary husband and wife" for years but never registered at Home Affairs?
If your traditional ceremony took place after 15 November 2000, you are already legally married In Community of Property, even without a Home Affairs certificate. In this case, you cannot simply sign an ANC. You must follow a Section 21 High Court application to change your marital regime. At Louwrens Koen Attorneys, we have assisted over 10,000 couples with these complex transitions.
What happens to our customary marriage if we decide to have a "White Wedding" (Civil Marriage) later?
Under the Recognition of Customary Marriages Act, a couple in a monogamous customary marriage can later enter into a civil marriage with each other. However, you cannot enter into a civil marriage with a different person while a customary marriage exists. It is vital that your ANC is registered before the first of these two ceremonies takes place to protect your separate estates.
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