Antenuptial contracts, explained before the wedding

The three ways to be married

• In community of property. The default when there is no contract. Everything each of you brings in and everything either of you earns, buys or owes during the marriage falls into one joint estate owned in equal undivided shares. Big decisions need both signatures. A creditor of one spouse can attach the joint estate, and if one of you is sequestrated, both are. On divorce or death the joint estate is split in half, and a will can only deal with the deceased’s half.
• Out of community of property with the accrual system. What you get with an antenuptial contract that says nothing about accrual, because the Matrimonial Property Act 88 of 1984 makes accrual the default for every out-of-community marriage since 1 November 1984. Each spouse keeps a separate estate, separate debts and full control of their own assets during the marriage. When it ends, the growth of each estate since the wedding is compared and the spouse whose estate grew less has a claim for half the difference. Assets you owned before, inheritances and donations can be excluded from the calculation in the contract.
• Out of community of property without accrual. Your contract must say so expressly. Each spouse keeps what is theirs before, during and after, and nothing is shared unless you choose to share it. Simple, and hard on a spouse who gives up a career to raise children, which is why the courts have expanded a divorced spouse’s ability to claim a redistribution in some of these marriages.

How to get one, step by step

1. Decide together: accrual or not, and what to exclude. Assets owned before the wedding, an inheritance you expect, a business one of you built. These are listed in the contract.
2. Decide on commencement values. Section 6 of the Act lets each spouse declare the value of their estate at the start of the marriage, either in the contract or in a separate signed statement within six months of the wedding. A value stated in the contract is binding. Declare nothing and your estate is taken to have started at nil, which makes the whole of it “growth” later.
3. See a notary public. Only a notary may execute an antenuptial contract. Both of you sign in the notary’s presence. You can sign a power of attorney for the notary to sign on your behalf if one of you is overseas, but the contract itself must be executed before the wedding.
4. Register it at the Deeds Office. Section 87 of the Deeds Registries Act 47 of 1937 requires registration within three months of execution, or six months if the contract was executed outside South Africa, or a longer period the court allows on application. The notary lodges it. Between the parties the contract binds from signature; registration is what makes it binding on outsiders such as creditors.
5. Marry, then keep the registered contract. Banks, conveyancers and the Master will ask for it for the rest of your lives. The marriage officer records whether an antenuptial contract exists when the marriage is registered.

What it costs

There is no statutory tariff for the notary’s work. In 2026 notaries and online services commonly quote between about R1 500 and R3 000 all in for a standard contract with or without accrual, including the Deeds Office registration fee, and more where the contract records detailed commencement values, excludes business interests or needs advice on a complicated estate. The Deeds Office’s own fee is a small fixed amount set in its schedule of fees, which was last replaced by Government Notice 7180 in Gazette 54225 of 27 February 2026 and comes into operation a month after publication; ask the notary for the current figure, and expect it to be included in the quote.

Compare that with the alternative. Changing your regime after the wedding needs a joint application to the High Court under section 21 of the Matrimonial Property Act, with notice to creditors and reasons the court accepts. Practitioners commonly quote around R20 000 excluding VAT for that application.

Already married without one?

You are in community of property, and no document signed between the two of you can change that on its own. Section 21(1) of the Matrimonial Property Act allows spouses to apply jointly to the High Court for leave to change their matrimonial property system. The court must be satisfied that there are sound reasons, that all creditors have had notice, and that nobody else will be prejudiced. If leave is granted, a notarial contract is signed and registered, and it takes effect from then. It is done regularly, and it is the expensive route.

What actually goes wrong

• Signing after the wedding. A contract signed even a day after the ceremony is not antenuptial. Couples who marry in a rush and mean to “sort the ANC out afterwards” are in community of property until a court says otherwise.
• Missing the three months. A contract that is signed but never registered binds the two of you but not creditors. Late registration needs a court application to extend the period.
• No commencement values. The spouse who came into the marriage with a house and savings and declared nothing is treated as having started at nil, and shares the growth of an estate that was mostly there already.
• Not saying “without accrual”. Silence means accrual. If you want a clean split, the contract has to exclude it in words.
• Assuming a customary or religious marriage is different. Customary marriages under the Recognition of Customary Marriages Act are also in community of property unless there is an antenuptial contract, and the same notary and Deeds Office rules apply.

Frequently asked questions