F.A.Q - Antenuptial Contracts

An Antenuptial Contract is a legal agreement signed before marriage that determines your matrimonial property regime. It prevents your estates from merging into a single "Joint Estate," protecting you from your partner's pre-existing debts.

We charge an all-inclusive fee of R1950 to draft and register your Antenuptial Contract. This fee is fixed with no hidden costs and includes the consultation, drafting, and registration at the Deeds Office.

No. Once you sign the contract at our office, our Notary Public issues a special certificate for your marriage officer. This certificate allows the wedding to proceed immediately while we handle the formal registration.

Important reasons to sign a prenuptial agreement before walking down the aisle.

• You are Marrying Someone with Significant Debt.
• You Wish to Protect Your Assets.
• You Want to Ensure Financial Security for Both Parties.
• You Want to Protect Your Business.
• Both parties need financial freedom to trade. 

We ill notify you when we have received the orinal antenuptial contract from the Registrar of Deeds. You can either pick up the document in perso from our offices or arrange with us to Postnet or Courier the document. We will charge courier or postnet fees if applicable.

We will notify you once the original is returned from the Registrar of Deeds. You can collect it in person from our Pretoria office, or we can arrange secure delivery via Postnet or Courier at your request.

We are located within the Northern Pavilion of Loftus Versveld Stadium. Us the same entrance as the Loftuspark shopping centre. Either park on top or use the basement parking facilities. Free safe parking for 2 hours. Enter gate 12 (Northern Pavilion). Click here for a link to Google Maps.

With over 25 years of experience and thousands of registered contracts, we are established specialists in South African matrimonial law. Our proximity to the Pretoria Deeds Office ensures the fastest possible processing times.

Choosing the right marriage contract depends on your financial goals, business interests, and how you wish to protect each other's futures. In South Africa, there are three primary options.

1. Marriage In Community of Property (The Default)
If you marry without signing an Antenuptial Contract (ANC), you are automatically married In Community of Property.

• Best for: Couples with similar assets and no high-risk business interests.
• The Risk: You share 100% of all assets and all debts. If one spouse is sued or becomes insolvent, the entire joint estate is at risk.

2. Marriage Out of Community of Property WITH Accrual
This is the most popular choice for modern South African couples.

• Best for: Most couples in which one spouse might stay home to raise children or in which career growth may differ over time.
• How it works: You keep your separate assets owned before marriage, but you share the wealth built during the marriage. It provides a fair "safety net" for the lower-earning spouse upon divorce or the death of a spouse.

3. Marriage Out of Community of Property WITHOUT Accrual

• Best for: Second marriages, older couples with established separate wealth, or high-risk business owners.
• How it works: What is yours remains yours, and what is your spouse's remains theirs. There is no sharing of assets or growth, regardless of how long the marriage lasts.

In South Africa, if you do not sign and register an Antenuptial Contract before your wedding day, your marriage automatically defaults to In Community of Property.
While this is often seen as a "traditional" partnership, it is the most legally and financially risky regime because it merges your financial lives into a single Joint Estate.
The 3 Major Risks of the Default System:

1. Total Joint Liability for Debt: You become 100% responsible for your spouse's debts—even those they incurred before you met. If your spouse fails to pay a credit card, a car loan, or a business debt, creditors can legally seize your salary and your assets to settle the balance.
2. Insolvency & Sequestration: Because there is only one estate, if your spouse is declared insolvent or their business goes bankrupt, the entire joint estate is sequestrated. You could lose your home and savings due to your partner’s financial misfortune, even if you were not involved in their business.
3. Loss of Financial Independence: You lose the right to conduct major financial transactions on your own. In terms of the Matrimonial Property Act, you generally require your spouse’s written consent to:
   • Sell or mortgage immovable property (like your home).
   • Enter into credit agreements or take out large loans.
   • Sign as a surety for someone else.

In South Africa, the terms are often used interchangeably, but legally, the correct term is an Antenuptial Contract (ANC). While "Prenup" is popular in American media, South African law requires an ANC to be formally executed before a Notary Public and registered at the Deeds Office to be legally binding against third parties (such as banks or creditors).

The contract must be signed before the marriage ceremony. Once you have signed the marriage register and said "I do," it is legally too late to enter into an ANC. If you miss this window, you are automatically married In Community of Property, and changing this status later requires a costly and complex High Court application for a Postnuptial Contract.

Yes. To protect your assets from your spouse’s creditors, the contract must be registered at the Deeds Office.

Think of the Accrual System as a "Fairness Formula." * What you bring in: Assets you owned before the marriage remain yours (your "Commencement Value").

• What you build together: The growth in wealth achieved during the marriage is shared 50/50 if the marriage ends. It ensures that if one spouse earns less or stays home to raise children, they still benefit from the financial success the couple achieved as a team.

Protecting a business is the most common reason for an ANC. If you are married In Community of Property and your business faces financial trouble, your spouse’s personal assets can be seized by your business creditors. By choosing a marriage Out of Community of Property (with or without accrual), you create a "legal wall" that protects your spouse’s home, car, and savings from your business risks and insolvency.

Before entering into an antenuptial contract, it’s essential to carefully consider the following:

1. Communication: Discuss your expectations, financial goals, and concerns openly with your partner.
2. Fairness: Ensure that the terms of the contract are fair and reasonable for both parties.
3. Long-term Impact: Consider how the chosen property regime will affect your financial situation over the long term, especially if the marriage ends or one spouse passes away.

An ANC remains valid for the entire duration of the marriage. It only ceases to have effect upon a final decree of divorce or the death of a spouse.

At Louwrens Koen Attorneys, we typically draft a standard ANC within 24 to 48 hours. Complex contracts involving offshore assets or intricate business exclusions may take longer.

Yes. You can change your matrimonial regime from "In Community of Property" to "Out of Community of Property" via a Postnuptial Contract. This requires a High Court application to authorize the change and protect your creditors.

The process typically takes 3 to 5 months. This includes drafting the court application and advertisement, notifying creditors, and obtaining a High Court Order before our Notary registers the new contract.

Because it involves a High Court application and legal notices, it is more expensive than an ANC. We provide a fixed-fee quotation that covers the entire process from court to registration. The fee will range between R15000 - R25000, depending on your circumstances. 

The parties need the approval of the High Court to register a postnuptial contract. This means drafting a motion application to court, notifying various parties, advertisements and briefing an advocate to petition the court. Thereafter with the permission of the court (court order) the parties may appear before the Notary Public to execute a Postnuptial Contract that is registered in the office of the Registrar of Deeds. Before marriage, the parties simply execute an antenuptial contract before a Notary Public without the High Court's permission.  Our typical costs for an antenuptial contract are R1450 and R15 000 for a Postnuptial contract.

Typically, it takes 3 - 4 months to acquire the High Court order and 7 -14 working days for the registration of the postnuptial contract.

The Bottom Line. In certain marital situations, a postnuptial contract is strongly recommended for spouses who didn't sign a antenuptial contract. Signing and entering into a Postnuptial agreement may hold significant benefits for both spouses.
The most common consequences of a postnuptial agreement and marriage out of community of property are as follows:

• The parties will not be held liable for the debts of a spouse that such spouse may have incurred after registration of the Postnuptial Contract. 
• Assets may be protected, particularly if one of the spouses has a business in his or her own name. The parties may decide to register assets such as their residential property in the name of only one spouse, being the spouse with the lowest risk profile. The assets of each spouse will also be safe if the other spouse is sequestrated.
• One or both spouses may have assets prior to the marriage that they want to exclude from the joint estate. 
• Spouses may enter into commercial transactions without the consent of their spouse.
• Each spouse retains control over his or her assets, builds his or her own estate and is responsible for his or her own debts after registration of the Postnuptial Contract. 

With Accrual means you share the wealth built during the marriage while keeping pre-marriage assets separate. Without Accrual means your estates remain completely separate forever—nothing is shared upon divorce or death.

For business owners, Out of Community of Property (with or without accrual) is usually best. It protects your spouse’s assets if your business faces insolvency, as creditors cannot claim against your spouse’s separate estate.

Yes. In a marriage Out of Community of Property, you are not responsible for debts your spouse incurred before or during the marriage. Your assets cannot be seized to pay for their creditors.

Because your estates are separate, your personal assets are protected from your spouse's sequestration or insolvency. Only their portion of the estate can be claimed by creditors.

Yes. You can list specific assets (like a family business, a house, or a retirement fund) in your Antenuptial Contract to be excluded from the accrual calculation upon divorce or death.

While trust is important in a marriage, an antenuptial contract serves as a legal safeguard. No one can predict what might happen in the future, and an ANC ensures that both parties are protected in case of unforeseen circumstances, such as divorce or one partner’s passing.

An antenuptial contract is not reserved for the wealthy. It is a crucial tool for anyone who wishes to safeguard their assets and protect their financial interests. Even if you don’t have significant wealth, an ANC can help avoid complications in case of divorce or the death of a spouse.

Yes. By default, an ANC "Out of Community of Property" ensures that your inheritance remains your separate property. You can also specifically list future inheritances as excluded assets in the contract to ensure they are never included in an accrual calculation.

If you are married In Community of Property, your inheritance may fall into the joint estate unless the deceased's Will specifically excluded it. If you have an ANC, your inheritance is generally protected as a separate asset.

No. An ANC is a registered legal contract that dictates the ownership of assets. A Will can only deal with assets that actually belong to your estate according to your matrimonial regime.

No. A clause permitting or penalizing adultery is considered contra bonis mores (against public policy) and is legally unenforceable in South Africa. The law does not allow spouses to contractually change the fundamental moral obligations of marriage.

No. Any clause that restricts a person’s right to choose their profession or forces them to stop working upon the birth of a child is invalid as it infringes upon constitutional freedoms and public policy.

No. In South Africa, the "Best Interests of the Child" principle is the supreme law. No contract can override the High Court’s role as the upper guardian of minors. Custody (care and contact) must be determined based on the child's circumstances at the time of divorce, not by a pre-marriage agreement.

While you can express your intention to be self-sufficient, a clause that completely waives a spouse's right to claim maintenance in the future is often viewed with skepticism by the courts. If a spouse is left destitute, the court has the statutory power under the Divorce Act to override such a clause to ensure social justice.

No. Unlike some celebrity prenups in the United States, South African courts generally view "lifestyle clauses"—such as those dictating a spouse's weight, appearance, or the frequency of household chores—as contra bonis mores. These infringe upon individual dignity and bodily autonomy and are legally unenforceable.

No. Under South African law, a clause requiring a spouse to adopt, convert to, or maintain a specific religion or faith is considered contra bonis mores (against public policy) and is legally unenforceable.
Section 15 of the Constitution protects the right to freedom of conscience, religion, thought, belief, and opinion. Therefore, you cannot "contract away" your partner's right to choose their faith. If such a clause is included, a court will strike it out as null and void, though the rest of the Antenuptial Contract will typically remain valid.

No. Only an admitted and practising Notary Public is authorised to execute an Antenuptial Contract. While many attorneys are also Notaries, the document must be signed in their specific capacity as a Notary, and they must affix their official seal of office to the deed for it to be valid.

This is legally permissible, provided the contract is signed before the marriage ceremony is solemnised. In such cases, our Notary will record the exact time of execution (e.g., 09:00 AM) to prove that the contract preceded the wedding. However, we recommend signing at least a week in advance to avoid unnecessary stress.

es. If a spouse cannot appear in person at our Pretoria offices, they can sign a special Power of Attorney. This document authorises a representative to appear before the Notary and sign the ANC on their behalf. This is a common service we provide for international couples.

It is valid inter partes (between the two of you), but it has no force or effect against third parties (like banks or creditors). Without registration at the Deeds Office within the 3-month deadline, you are legally considered to be married In Community of Property by the outside world. To fix this, a costly High Court application is required.

No. An ANC registered in any Deeds Registry in South Africa—such as the Pretoria Deeds Office—is operative and valid throughout the entire country. At Louwrens Koen Attorneys, we handle the entire lodgement process at the Pretoria registry for your convenience.

In South Africa, donations between spouses are exempt from Donations Tax in terms of Section 56(1)(b) of the Income Tax Act. This makes the Antenuptial Contract an incredibly tax-efficient tool for transferring assets and balancing your respective estates before or during your marriage.

Under Section 27 of the Insolvency Act, if an asset was donated to a spouse in a duly registered ANC in "good faith" (at least two years before insolvency), that asset is generally protected from the creditors of the insolvent spouse. It serves as definitive proof that the property belongs to the solvent spouse’s separate estate.

Assets donated in an ANC are generally considered the exclusive property of the receiving spouse. Because they are typically excluded from the accrual calculation, they remain with the "donee" (the person who received the gift) and are not split 50/50, provided the clause was drafted correctly by your Notary.

Without a specific clause in your ANC, cash gifts are often seen as "joint property" if it isn’t clear who the intended recipient was. By including a Wedding Gift Donation Clause, you can legally stipulate that all cash and physical gifts are the sole property of one spouse, preventing any future disputes or attachment by creditors.

Accrual is calculated by subtracting the commencement value (adjusted for inflation using the CPI) from the end value of each spouse's estate. The spouse whose estate shows the smaller growth is entitled to half of the difference between the two accruals. Certain assets, like inheritances and personal injury damages, are excluded by law.

Yes. Under the Matrimonial Property Act, spouses can expressly exclude specific assets (like a pre-existing business or family farm) in their Antenuptial Contract. These assets, and any growth related to them, will not be shared upon the dissolution of the marriage.

Yes. To ensure fairness, the law requires that the commencement value declared in your Antenuptial Contract be adjusted using the Consumer Price Index (CPI). This ensures that the "real value" of what you brought into the marriage is compared to the value of your estate at the time of dissolution, preventing inflation from creating an artificial accrual.

If your estate has decreased in value or you have more debt than assets, your accrual is deemed to be zero. You cannot have a "negative accrual" that reduces your spouse's growth. In this scenario, you would still be the spouse with the smaller growth and would likely have a claim against your partner’s larger accrual.

This is a common pitfall. To ensure the house remains excluded, you must clearly "trace" the funds and ideally state in your ANC (or a later addendum) that assets acquired with excluded funds remain excluded. Without clear drafting by a Notary, the growth in the house's value might inadvertently be included in the accrual calculation.

Absolutely. While the default is an equal 50% share of the difference, the Matrimonial Property Act allows for "Freedom of Contract." You can specify any percentage or even a capped amount in your ANC. This is often used when one spouse contributes significantly more initial capital or has a specialised business interest.

Under current South African law, your "pension interest" is considered an asset in your estate. Therefore, the value of your retirement savings accumulated during the marriage forms part of your accrual. If you wish to keep your pension entirely separate, this must be expressly excluded in your Antenuptial Contract.

No. In South Africa, an ANC is primarily a tool for debt and insolvency protection. It ensures that if one spouse’s business or finances fail, the other spouse’s assets (like the family home) remain safe from creditors. It is an "insurance policy" for the marriage's financial health, not a prediction of its failure.

Quite the opposite. With the Accrual System, the law ensures that the spouse who may earn less or stay at home to raise children is entitled to share in the wealth built during the marriage. This creates a more equitable outcome than being married "In Community of Property," where one spouse's debt can ruin both parties.

While being married In Community of Property sounds romantic, it means you share 100% of the risk. If your spouse is sued, loses a business, or defaults on a loan, your personal savings and assets are legally "fair game" for their creditors. An ANC allows you to share your lives and your love without the unnecessary risk of shared financial ruin.

It is possible, but it is a complex and expensive legal process. To change from "In Community" to "Out of Community" (or vice versa) after the wedding, you must make a formal Section 21 Application to the High Court. This involves legal fees, advertising for creditors, and court costs. It is far more cost-effective to get the right contract in place before you say "I do."

Yes. At Louwrens Koen Attorneys, you can apply online for your Antenuptial Contract even if you have already started lobola negotiations. As long as the traditional celebrations are not yet "celebrated" or finalized, you can still secure an ANC to be married Out of Community of Property.

Not necessarily. While lobola is a crucial part of the negotiations, the law requires that the marriage be "negotiated, entered into, and celebrated." If you have only paid a portion of the lobola and the bride has not yet been "handed over" to the groom's family in a traditional ceremony, the marriage is often not yet complete. Best to conclude an antenuptial contract before payment of lobolao ensure you are married Out of Community of Property. 

If your traditional ceremony took place after 15 November 2000, you are already legally married In Community of Property, even without a Home Affairs certificate. In this case, you cannot simply sign an ANC. You must follow a Section 21 High Court application to change your marital regime. At Louwrens Koen Attorneys, we have assisted over 10,000 couples with these complex transitions.

Under the Recognition of Customary Marriages Act, a couple in a monogamous customary marriage can later enter into a civil marriage with each other. However, you cannot enter into a civil marriage with a different person while a customary marriage exists. It is vital that your ANC is registered before the first of these two ceremonies takes place to protect your separate estates.