Antenuptial Contracts in South Africa: Accrual, Formalities and Deadlines (2026)

An antenuptial contract (ANC) is the document a couple signs before marrying to choose a matrimonial property system other than the automatic default. This guide covers what happens without one, how accrual works when you have one, the formalities and deadlines for signing and registering one, and what happens if you want to change your system after the wedding.

Information last verified on 23 July 2026. This page provides general legal information about South African law and does not constitute legal advice in an individual case.

Without an ANC: In Community of Property

A South African marriage without an antenuptial contract is automatically in community of property. Both spouses' estates merge into one joint estate, and, since the marital power was abolished, a wife in community of property has the same powers over that joint estate that a husband has.

Either spouse can generally deal with the joint estate without the other's consent, but section 15(2) of the Matrimonial Property Act requires the other spouse's written consent for a defined list of major transactions, in one paragraph: mortgaging or alienating immovable property, dealing with shares, insurance policies or fixed deposits, selling jewellery or other investment-type valuables, withdrawing money from the other spouse's own bank account, entering a credit agreement, buying property under an instalment sale, and standing surety. A spouse acting in the ordinary course of their profession, trade or business is exempt from several of these consent requirements. Where a debt is recoverable from the joint estate, section 17(5) allows the spouse who incurred it, or both spouses jointly, to be sued for it.

A debt one spouse already owed before the wedding becoming a joint-estate liability once the couple marries in community of property is a long-standing feature of how a joint estate works in South African law, though this guide has not traced it to a specific numbered provision of the Matrimonial Property Act itself; treat it as background rather than a section-by-section rule.

Out of Community With Accrual: the ANC Default

Signing an antenuptial contract takes a couple out of community of property. Unless the contract expressly excludes it, the accrual system then applies automatically to any ANC signed since 1 November 1984: each spouse keeps a separate estate during the marriage, but at divorce or death, the spouse whose estate accrued less has a claim against the other spouse for half the difference between the two estates' accrual.

Accrual is designed to share growth, not starting capital. Section 5 of the Matrimonial Property Act excludes an inheritance, legacy or donation received during the marriage, and any asset acquired because of it, from a spouse's accrual, unless the spouses agree otherwise in the contract or the person leaving the inheritance says otherwise. Damages recovered for something other than patrimonial loss, such as pain and suffering, are also left out of the accrual calculation.

Watch out: the commencement-value trap. Each spouse can declare, in the ANC itself or in a signed, notarised statement filed within 6 months of the marriage, what their estate was worth when the marriage started. If a spouse never declares a starting value, section 6(4) deems it to be nil unless proven otherwise. That silence can mean the whole value of that spouse's estate at the end of the marriage is treated as accrual, growth during the marriage, materially increasing what the other spouse can claim. Declaring a starting value is a simple step that protects a spouse who is entering the marriage with existing assets.

Out of Community Without Accrual

A couple can also exclude the accrual system entirely in their antenuptial contract. Where this is done, each spouse's estate stays entirely separate throughout the marriage and at its end: there is no sharing of growth and no accrual claim against the other spouse. This must be stated expressly in the contract; without an express exclusion, accrual is the default for any ANC signed since 1 November 1984.

Formalities and Deadlines: Notary, Registration, and What Happens If You Miss Them

An antenuptial contract must be attested by a notary before the wedding. Under sections 86 and 87 of the Deeds Registries Act 47 of 1937, a contract executed in South Africa must then be registered in a Deeds Registry within three months of signing, extendable by a court on application; a contract executed outside South Africa gets six months, and can be attested according to that country's own law rather than by an SA notary.

An unregistered antenuptial contract is still valid and binding between the spouses. Section 86 is explicit that it is 'of no force or effect as against any person who is not a party thereto', meaning a creditor of one spouse, for example, could treat the couple as though no antenuptial contract existed at all.

If a couple agreed on their intended matrimonial property terms before the wedding but never got the contract signed and registered in time, section 88 of the Deeds Registries Act lets a court authorise postnuptial execution of a contract having the effect of an antenuptial contract, provided the terms were genuinely agreed before the marriage. This is a narrower, specific remedy for a missed formality, distinct from the general power in section 21 of the Matrimonial Property Act, covered next, to change a couple's system altogether.

Married Without an ANC and Want to Change? Section 21(1)

A husband and wife, married before or after the Matrimonial Property Act commenced, can jointly apply to a court for leave to change the matrimonial property system that applies to their marriage. Under section 21(1), the court can grant this only if satisfied there are sound reasons for the change, sufficient notice of it has been given to all the couple's creditors, and no other person will be prejudiced by it. If granted, the court authorises the couple to enter a notarial contract regulating their new system, which must then be registered the same way an antenuptial contract is.

A related but narrower correction reached the statute books in 2024. The Judicial Matters Amendment Act 15 of 2023 repealed a different, older sub-provision, section 21(2)(a), to comply with the Constitutional Court's ruling in Sithole and Another v Sithole and Another. That case addressed a specific historical default: certain marriages of black couples concluded before 1988 under the Black Administration Act had automatically defaulted to out of community of property. The fix reclassifies those specific marriages as in community of property, unless a couple affirmatively opts to stay out of community by notifying the Director-General of Home Affairs in writing. It is a targeted correction for that historical group of marriages, not a change to how the general section 21(1) process works for couples applying to change their system today.

Costs

Two kinds of fees apply to an antenuptial contract. A notary's professional fee for drafting and executing the contract is the notary's own and varies from firm to firm, so ask for a fixed quote before instructing them to draft your contract. The Deeds Registry charges its own prescribed office fee on lodgement, set under regulations made in terms of section 10(1)(b) of the Deeds Registries Act 47 of 1937. This guide does not quote figures because none was verified against an official source.

Related Reading

For how property is actually divided when a marriage governed by one of these systems ends, see divorce in South Africa. For the equivalent property rules under customary law, see customary marriage. For planning what happens to your estate on death, whatever your matrimonial property system, see making a valid will and dying without a will. For the wider section, see South Africa Family Law, and for the full site directory, see South Africa Laws.

This guide is general legal information, not legal advice. For advice on your own situation, consult an attorney, or contact Legal Aid South Africa (0800 110 110) if you cannot afford one.

Frequently Asked Questions

What happens to our property if we marry without an antenuptial contract?

Your marriage is automatically in community of property, meaning both spouses' estates merge into a single joint estate, both existing assets and future ones and, as a long-standing consequence of the joint estate, both existing debts and future ones as well. Section 15 of the Matrimonial Property Act then requires one spouse's written consent before the other can do things like mortgage immovable property, sell certain investments, or stand surety.

Does accrual mean my spouse gets half of everything I owned before the marriage?

No. Accrual only shares the growth in each spouse's estate during the marriage, calculated at dissolution as half of the difference between the two estates' accrual. Inheritances, legacies and donations received during the marriage, and non-patrimonial damages such as for pain and suffering, are excluded from a spouse's accrual under section 5 of the Matrimonial Property Act unless the contract says otherwise.

What happens if we do not declare a starting value in our antenuptial contract?

Section 6(4) of the Matrimonial Property Act deems an undeclared starting value to be nil unless the contrary is proved. That means, without evidence otherwise, the whole value of that spouse's estate at dissolution can be treated as accrual, growth during the marriage, which can significantly increase what the other spouse can claim.

Can we sign our antenuptial contract after the wedding instead of before?

Not as a matter of course. An antenuptial contract must ordinarily be signed before a notary before the wedding. The Deeds Registries Act allows a court to authorise postnuptial execution of a contract having the effect of an antenuptial contract, but only where the couple can show the terms were already agreed between them before the marriage. A married couple who never agreed terms before the wedding instead has to apply under section 21(1) of the Matrimonial Property Act.

Can we change our matrimonial property system after we are already married?

Yes, but only with a court's leave under section 21(1) of the Matrimonial Property Act, which requires sound reasons for the change, sufficient notice to all creditors, and proof that no other person will be prejudiced. This is a general mechanism available to any married couple; it is separate from a 2024 legal correction that addressed a specific historical default affecting some marriages concluded under apartheid-era legislation.

How much does an antenuptial contract cost in South Africa?

Costs vary. A notary sets and quotes their own professional fee for drafting and executing the contract, and the Deeds Registry charges its own prescribed office fee on registration. Ask a notary for a fixed quote before instructing them.