Introduction

 When you get married in South Africa, your choice of marital regime is one of the most important financial decisions you will ever make. It determines how your assets, debts, and wealth are handled during the marriage and — critically — what happens if the marriage ends through divorce or death. If you do nothing, the law automatically marries you in community of property. 

An antenuptial contract (also called a “prenuptial agreement” or simply an “ANC”) is the legal instrument that allows you to choose a different arrangement. It must be signed before a notary public and registered in the Deeds Office before the wedding takes place. 

The Three Marital Regimes in South Africa

 South African law provides three options. You must understand all three before making your choice. 

1. Marriage In Community of Property (the Default)

 If you marry without signing an antenuptial contract, you are automatically married in community of property. This means: 

• One joint estate. Everything you each own before the marriage, and everything acquired during the marriage, merges into a single joint estate. Both spouses own an undivided half-share of the entire estate.
• Joint debts. All debts — including debts incurred by only one spouse — become joint debts. If your spouse runs up debt, creditors can claim against the joint estate, including your assets.
• Consent required. Neither spouse may sell immovable property, enter into credit agreements, or perform certain legal acts without the other spouse's written consent.
• On divorce or death, the joint estate is divided equally, regardless of who contributed what.

 Who might choose this? Some couples prefer the simplicity and symbolism of sharing everything equally. However, the shared liability for debts and the loss of financial independence are significant drawbacks for most people. 

2. Marriage Out of Community of Property Without the Accrual System

 This is the complete separation regime. The antenuptial contract specifically excludes the accrual system. 

• Separate estates. Each spouse retains their own estate. What is yours stays yours; what is theirs stays theirs.
• Separate debts. Each spouse is responsible only for their own debts. Creditors of one spouse cannot claim against the assets of the other.
• Full independence. Neither spouse needs the other’s consent to buy, sell, or deal with their own assets.
• On divorce or death, each spouse walks away with their own estate. There is no sharing or equalisation of assets.

 Who might choose this? This option is often chosen by business owners who want to protect their spouse from business risk, by persons entering second marriages later in life who wish to keep their estates entirely separate, or by couples where one party has significant existing wealth or debt. The downside: This regime can produce harsh results. If one spouse sacrificed a career to raise children while the other built a business empire, the stay-at-home spouse may walk away with very little in a divorce. 

3. Marriage Out of Community of Property With the Accrual System

 This is the most chosen option in South Africa and is widely regarded as the fairest compromise. The antenuptial contract includes the accrual system as provided for in the Matrimonial Property Act 88 of 1984. 

• Separate estates during the marriage. Each spouse manages their own affairs independently. Debts remain separate. No consent is required for transactions.
• Sharing of growth on dissolution. When the marriage ends (by divorce or death), the growth (called the “accrual”) of each spouse’s estate during the marriage is compared. The spouse whose estate grew less has a claim against the estate of the spouse whose estate grew more, so that the growth is shared equally.

 In essence, this regime gives you the independence and protection of separate estates while you are married, while also ensuring the fairness of sharing the wealth accumulated during the marriage when it ends. 

Who might choose this? The vast majority of couples. It is the recommended option for most people because it balances independence with fairness. Also see our handy comparison table on the next page. 

Compare Your Matrimonial Property Choices 

The Accrual System Explained in Detail

 The accrual system is the heart of most antenuptial contracts. Understanding it properly requires knowledge of three key concepts: the net commencement value, assets excluded from the accrual, and how the accrual calculation works. 

What Is the “Accrual”?

 The accrual of a spouse’s estate is the amount by which the net value of that estate at the dissolution of the marriage exceeds the net commencement value of that estate at the start of the marriage. Put simply: Accrual = What you end with − What you started with. The accrual measures how much each spouse’s estate grew during the marriage. 

Net Commencement Value

 The net commencement value is the value of each spouse’s estate at the start of the marriage, after deducting liabilities (debts). It is declared in the antenuptial contract itself. 

How It Works 

• Before the wedding, each spouse must honestly assess the value of their assets and subtract their debts. The resulting figure is their net commencement value.
• This value is recorded in a schedule or declaration forming part of the antenuptial contract.
• If no value is declared, the law deems the commencement value to be zero. This means that on dissolution, the entire value of that spouse’s estate will count as accrual — in other words, all of it will be subject to sharing.

 Example: Determining Net Commencement Values 

These figures are locked in on the date of marriage and serve as the baseline against which growth is later measured. 

Important Notes on Commencement Values 

• The declared values must be honest and accurate. Inflating your commencement value to reduce your eventual accrual obligation is a form of fraud against your future spouse.
• The commencement value is adjusted for inflation over time using the Consumer Price Index (CPI), so it reflects real growth, not merely inflation. This means that R400,000 in 2024 will be adjusted upward when the calculation is completed, protecting its real value from erosion.
• Couples who have no significant assets at the start of their marriage often declare commencement values of zero or a nominal amount, which is perfectly acceptable.

Assets Excluded from the Accrual

 Not all assets form part of the accrual calculation. Certain assets can be excluded, meaning they are not considered when determining how much a spouse’s estate has grown. There are two categories of exclusions. 

A. Exclusions by Law (Automatic) The Matrimonial Property Act automatically excludes certain assets from the accrual: 

• Inheritances. Any asset inherited by a spouse during the marriage is excluded from the accrual, unless the deceased person (the testator) specifically stated in their will that the inheritance should form part of the accrual.
• Donations (gifts). Any asset received by a spouse as a donation during the marriage is excluded, unless the donor specifically stated that the donation should form part of the accrual.
• Assets acquired with excluded assets. If you use an inheritance or excluded donation to buy something else, the replacement asset is also excluded (this is the principle of substitution).
• Damages for personal injury. Non-patrimonial damages awarded to a spouse for personal injury (pain and suffering) are excluded.

 The rationale is that inheritances and donations are windfalls; they were not generated by the marriage's joint efforts and should therefore not be shared. 

B. Exclusions by Agreement (in the Contract) In addition to the statutory exclusions, the couple may agree in the antenuptial contract to exclude specific additional assets from the accrual. Common examples include: 

• A family business or shares in a family company owned before the marriage
• A specific immovable property (e.g., a holiday home inherited from family, or an investment property)
• A retirement fund or pension interest
• An existing investment portfolio
• Any other specifically identified asset that the parties agree on should not be subject to sharing

 Practical advice: Think carefully about what you exclude. Excluding too many assets can undermine the purpose of the accrual system and leave one spouse without fair protection. At the same time, there may be good reasons to protect certain assets — for instance, a business that must remain within a family or a property with sentimental value. Any exclusion must be clearly described in the antenuptial contract to be enforceable. 

How the Accrual Calculation Works

When the marriage dissolves (whether by divorce or death), the accrual of each spouse’s estate is calculated and compared. Here is the step-by-step process: 

Step 1: Determine each spouse’s current net estate value. Add up the total value of all assets and deduct all debts at the date of dissolution. Exclude any assets that are excluded by law or by agreement. 

Step 2: Deduct the net commencement value (adjusted for inflation). The commencement value declared at the start of the marriage is adjusted for inflation using the CPI. This adjusted figure is then deducted from the current net value. 

Step 3: The result is the accrual. If the net estate value exceeds the adjusted commencement value, the difference is the accrual. If the net estate value is less than the adjusted commencement value, the accrual is zero (it cannot be negative).

 Step 4: Compare the two accruals. The spouse with the smaller accrual has a claim against the spouse with the larger accrual for half the difference between them. 

Example: Assume a marriage of 10 years, and that inflation has doubled prices over that period (CPI adjustment factor of 2). 

 Difference between the two accruals: R2,200,000 − R200,000 = R2,000,000. Spouse B’s claim against Spouse A: R2,000,000 ÷ 2 = R1,000,000. Spouse B is entitled to claim R1,000,000 from Spouse A, so that the growth generated during the marriage is shared equally. 

Practical Matters: The Process

• Timing is everything. The antenuptial contract must be signed before the marriage and registered with the Deeds Office within three months of signing. Ideally, couples should begin the process at least 4 to 6 weeks before the wedding.
• Both parties must sign before a notary public. The notary must be satisfied that both parties understand the contract and sign voluntarily.
• A power of attorney may be used if one or both parties cannot be physically present at the signing. The absent party grants the power of attorney to someone who signs on their behalf before the notary.
• Registration. After signing, the notary lodges the contract at the Deeds Office for registration. Only once registered does the contract take effect against third parties.
• Cost. The notarial fees for an antenuptial contract are modest relative to its importance. It is one of the most important and cost-effective legal instruments you will ever sign.

Frequently Asked Questions

Can we sign an antenuptial contract after the wedding? 
No. An antenuptial contract must be executed before the marriage. If you are already married in community of property, you can apply to the High Court for a postnuptial change of marital regime, but this is a more complex and expensive process. 

What if we forget to register the contract in time? 
If the contract is not registered within three months of signing, the court may grant permission to register a postnuptial contract. However, this adds delay, high cost, and uncertainty. It is best to attend to registration promptly. 

Can the antenuptial contract be changed after marriage? 
Changes to the marital regime after marriage require a court application under Section 21 of the Matrimonial Property Act. Both spouses must consent, and the court must be satisfied that the change will not prejudice creditors or any other person. 

What happens to retirement funds? 
Retirement fund interests are treated separately under the Divorce Act and are not automatically part of the accrual calculation. However, they can be dealt with in divorce proceedings. Professional advice on this specific issue is recommended. 

Does an antenuptial contract affect inheritance? 
No. An antenuptial contract deals with the marital regime during and at the end of the marriage. Inheritance is governed by your will (or the law of intestate succession if you die without a will). However, the marital regime can affect the size of the estate available for distribution. 

Conclusion

 Choosing the right marital regime is a decision with lifelong financial consequences. For most South African couples, an antenuptial contract with the accrual system offers the best balance of independence, protection, and fairness. It protects each spouse from the other’s debts during the marriage while ensuring that the wealth built together is shared equitably when the marriage ends. Do not leave this critical decision to chance. If you are planning to get married, consult a notary public who specialises in antenuptial contracts to ensure your interests — and those of your future spouse — are properly protected. This guide is provided for general information purposes and does not constitute legal advice. 

For advice specific to your circumstances, consult a qualified legal professional.
© Louwrens Koen Attorneys — antenuptialcontracts.co.za