Antenuptial Contracts: Protecting Your Assets Before Saying "I Do"
Key takeaways
A South African civil marriage is in community of property by default. An antenuptial contract, signed before entering into a marriage is what changes that.
Once you sign an antenuptial contract, the accrual system applies automatically unless the contract expressly excludes it.
Each option has trade-offs. In community of property means shared debt as well as shared assets, while excluding accrual can leave a lower-earning spouse without a claim on growth they helped make possible.
It may help for the parties to seek legal and financial advice before making a decision.
According to Stats SA, the marital landscape of South Africa is shifting. Not only are there more divorces being registered, but the organisation states that women are increasingly the ones initiating proceedings, with wives filing for approximately 57,2% of all divorces granted in 2024.
If you hold investments, a business interest or an inheritance, the contract signed before entering a marriage may shape your position for decades.
This guide is brought to you by Sanlam to help you understand how South Africa's matrimonial property regimes could affect the assets you have built.
What are South Africa's three matrimonial property regimes?
The table below outlines the major differences between the three marital property regimes.
In community of property | Out of community, with accrual | Out of community, without accrual | |
How you get it | The default. No antenuptial contract signed | The default once you sign an antenuptial contract | Only if your antenuptial contract expressly excludes accrual |
Your estates | One joint estate, owned in undivided halves | Two separate estates. Each spouse generally owns their own assets. | Two completely separate estates. Each spouse generally owns their own assets |
Debt | Generally shared. Creditors may look to the joint estate | Each spouse's debt stays their own | Each spouse's debt stays their own |
At the end | The joint estate is generally divided in half | The spouse with the smaller growth may claim half the difference (section 3) | Each spouse keeps what is in their own name |
Inheritances | Generally fall into the joint estate unless the will says otherwise | Excluded from accrual unless the antenuptial contract or the will says otherwise (section 5) | Stay separate |
Day-to-day freedom | Written spousal consent needed for several major transactions (section 15) | You manage your own estate | You manage your own estate |
Sections cited are from the Matrimonial Property Act 88 of 1984.
How does an antenuptial contract with accrual work?
Accrual is about growth. It shares what you built up during the marriage, not what you already owned when you got married.
Each spouse writes down the value of their estate at the start (the commencement value). At the end of the marriage, whether through divorce or death, you compare how much each estate has grown. The commencement values are adjusted for inflation first, so the comparison is fair.
The spouse whose estate grew less can then claim half of the difference.
Some things don't count. Inheritances, legacies and donations are left out, unless your antenuptial contract says otherwise or the testator or donor stipulates otherwise. You can also name specific assets in your antenuptial contract, such as shares in a business, and keep those out of the calculation too.
For illustration: if your estate grows by R1 million during the marriage and your spouse’s grows by R200 000, the difference is R800 000 and your spouse could claim R400 000. Whatever you owned at the start stays out of the calculation.
When must an antenuptial contract be registered?
Timing is very important. An antenuptial contract cannot simply be fixed informally after the wedding.
You must sign the contract before entering into the marriage, in front of two witnesses and a notary. If you sign it after the ceremony — even later on the same day — you will be married in community of property.
The notary must register the contract at a Deeds Registry within three months after it is signed. A court can allow more time in certain circumstances.
Until the contract is registered, it does not protect you against other people, such as creditors.
Can you change your matrimonial property regime after the wedding?
You can change the matrimonial property regime, but only through the High Court. Spouses apply jointly for leave to change their system, and the court must be satisfied that there are sound reasons, that creditors have had sufficient notice and that no one else will be prejudiced (section 21(1), Matrimonial Property Act).
Where do trusts and professional advice fit in?
Trust property is usually kept separate from a trustee’s personal assets. However, this may be different if the trustee is also a beneficiary of the trust.
This is why trusts are often used as part of family wealth-planning. They can help protect assets for future generations, but they should work alongside an antenuptial contract, not replace one.
A trust does not provide automatic protection in every situation. A court may look closely at the trust if one spouse treated trust assets as if they were their own personal property.
If a trust is genuine and properly managed, its assets will generally not form part of the couple’s joint estate or be included when calculating an accrual claim.
Next steps you may want to consider
If you are married, you may want to establish which matrimonial property regime applies to you, and whether a antenuptial contract has been registered.
It may help to read articles on marital contracts and your estate, family structure and will planning and wills, trusts and estates, and to check whether your will and your antenuptial contract say the same thing about inheritances.
Consider speaking to a notary about the antenuptial contract itself, and to a financial adviser about what each option could mean for your longer-term plans.
This is general information and for education only and does not constitute financial advice. For personal recommendations, speak to a financial adviser.
Frequently asked questions
What is an antenuptial contract?
A contract signed before a marriage that excludes community of property, community of profit and loss and, in some cases, accrual, and sets out how the spouses' estates will be treated. It must be attested by a notary and registered at a deeds registry (Deeds Registries Act 47 of 1937)What does an antenuptial contract with accrual mean?
It means the spouses keep separate estates during the marriage, but share the growth in those estates when the marriage ends. The spouse whose estate grew less may claim half the difference between the two growth figures.What are the disadvantages of marriage out of community of property without accrual?
Each spouse keeps only what is in their own name. A spouse who earned less, or who supported the household rather than building an estate, may end the marriage with far less, regardless of non-financial contributions.What are the disadvantages of marriage in community of property?
Assets and debts are generally shared, one spouse's financial difficulty affects both, and written consent is needed for a number of significant transactions.
Key terms explained
Antenuptial contract: A notarial contract signed before entering into the marriage that changes the default marital property regime. Often referred to as an ANC.
In community of property: One joint estate, owned by both spouses in undivided halves, covering both assets and debts.
Out of community of property: Each spouse keeps a separate estate, made possible by an antenuptial contract.
Accrual system: A way of sharing the growth in each spouse's estate over the course of the marriage, while keeping the estates separate during it.
Commencement value: The declared net value of a spouse's estate at the start of the marriage, used as the baseline for the accrual calculation.
Notary: An attorney with an additional qualification, authorised to attest documents such as antenuptial contracts.
Deeds registry: The government office where antenuptial contracts and property records are registered.
Forfeiture: A court order that a spouse loses some or all of a benefit they would otherwise have received on divorce.
Redistribution order: A divorce court order transferring assets between spouses married out of community of property, in defined circumstances, under section 7(3) of the Divorce Act 70 of 1979.
Trust: A legal arrangement in which trustees hold and administer property for beneficiaries, governed by the Trust Property Control Act 57 of 1988.
Sources and further reading
Statistics South Africa (Stats SA). (2026, March 20). Women drive divorce filings as marriages continue to decline. Available at https://www.statssa.gov.za/?p=19344
Matrimonial Property Act 88 of 1984, sections 2, 3, 4, 5, 6, 9, 15, 20 and 21 (accrual system, spousal consent and changing the matrimonial property system) - SAFLII consolidated text. Available at: https://www.saflii.org/za/legis/consol_act/mpa1984260/
Matrimonial Property Act 88 of 1984, full text - Department of Justice and Constitutional Development. Available at: https://www.justice.gov.za/legislation/acts/1984-088.pdf
Deeds Registries Act 47 of 1937, sections 86, 87 and 88 (registration of antenuptial contracts and postnuptial contracts) - SAFLII consolidated text. Available at: https://www.saflii.org/za/legis/consol_act/dra1937172/
Recognition of Customary Marriages Act 120 of 1998, section 7(2) (default regime for customary marriages) - Department of Justice and Constitutional Development. Available at: https://www.justice.gov.za/legislation/acts/1998-120.pdf
Civil Union Act 17 of 2006, section 13 (legal consequences of a civil union) - South African Government. Available at: https://www.gov.za/documents/acts/civil-union-act-17-2006-17-nov-2006
Trust Property Control Act 57 of 1988, section 12 (trust property separate from the trustee's personal estate) - Department of Justice and Constitutional Development. Available at: https://www.justice.gov.za/legislation/acts/1988-57.pdf
EB (born S) v ER (born B) and Others; KG v Minister of Home Affairs and Others [2023] ZACC 32 (section 7(3) of the Divorce Act and redistribution for marriages excluding accrual), Constitutional Court, 10 October 2023 - SAFLII. Available at: https://www.saflii.org/za/cases/ZACC/2023/32.html
AM v HM 2020 (8) BCLR 903 (CC) (spouses cannot change their matrimonial property system by private agreement), Constitutional Court, 2020 - SAFLII. Available at: https://www.saflii.org/za/cases/ZACC/2020/9.html
General (Family) Laws Amendment Bill B20-2025 (proposed amendments to the Divorce Act and Matrimonial Property Act), status recorded as sent for assent as at 21 August 2026 - Parliament of South Africa. Available at: https://www.parliament.gov.za/bill/2323835
Marriages and Divorces 2024, Statistical Release P0307 (97 510 civil marriages, 24 202 divorces, divorces by duration of marriage) - Statistics South Africa, published 2026. Available at: https://www.statssa.gov.za/publications/P0307/P03072024.pdf
Insolvency and the joint estate - Legal Aid South Africa. Available at: https://legal-aid.co.za/insolvency/
Antenuptial Contracts: I do, I don't (timing of signature relative to the ceremony) - Cliffe Dekker Hofmeyr, 26 September 2023. Available at: https://www.cliffedekkerhofmeyr.com/news/publications/2023/Practice/Real/real-estate-law-alert-26-september-antenuptial-contracts-I-do-I-dont
Sanlam - Marital contracts explained: protecting love and your estate. Available at: https://www.sanlamonline.co.za/knowledge-hub/marital-contracts-protecting-your-estate
Sanlam - Your will vs your family structure. Available at: https://www.sanlamonline.co.za/knowledge-hub/family-structure-will-planning
Sanlam - Wills, trusts and estates. Available at: https://www.sanlamonline.co.za/financialplanning/wills-trusts-and-estates
Sanlam - Set up a trust in South Africa. Available at: https://www.sanlamonline.co.za/financialplanning/wills-trusts-estates/trusts
Sanlam - Get advice from a licensed financial adviser. Available at: https://www.sanlamonline.co.za/personal/get-advice