Antenuptial Contracts in South Africa
Why Your Antenuptial Contract Matters More Than You Think
Getting married is exciting, but the legal and financial decisions you make beforehand will shape your marriage for years to come. Many couples rush through antenuptial contracts (ANCs) without fully understanding the consequences, or skip them entirely, assuming they won’t be needed.
That’s a mistake.
The Real Cost of Getting It Wrong
Your matrimonial property regime determines how assets, debts, and financial rights are handled during the marriage, at divorce, and even after death. Choose the wrong one, and you could expose yourselves to unnecessary risk or leave one spouse financially vulnerable.
The three regimes (community of property, out of community with accrual, and out of community without accrual) sound straightforward. But the long-term implications aren’t obvious. A spouse who steps back from their career to raise children, support a business, or manage the household may face serious financial consequences years later if the ANC doesn’t account for that contribution.
Why Recent Legal Changes Matter
The 2023 Constitutional Court judgment (EB v ER) and the proposed General (Family) Laws Amendment Bill, 2025 are reshaping how South African courts view fairness in marriages out of community of property. Couples who thought they had “complete separation” may now have grounds for redistribution claims in certain circumstances.
This isn’t about overturning ANCs. It’s about ensuring they’re fair and properly understood before signing.
Three Mistakes That Cost Couples
- Signing at the last minute. ANCs must be signed and registered before the wedding. Rushing leads to misunderstandings and missed opportunities to address specific concerns.
- Not understanding accrual. The difference between “with accrual” and “without accrual” is critical. Excluding accrual can leave a non-earning or lower-earning spouse exposed, especially in light of recent legal developments.
- Using generic templates. Your ANC needs to reflect your specific assets, debts, business interests, and life circumstances, not a one-size-fits-all template.
What to Do Next
An attorney can help you understand your options, record commencement values correctly, identify assets that need special attention, and ensure your ANC is properly drafted and registered. With family law evolving, professional advice isn’t optional. It’s essential.
If you’re planning to get married, Van der Merwe Attorneys can guide you through the process in clear, practical terms. We’ll help you choose a matrimonial property regime that suits your circumstances and gives you both confidence and protection.
Book a consultation with Van der Merwe Attorneys today.
Contact: douw@vdmerweattorneys.co.za | 082 441 6542