One of the most frequently asked questions our office receives is whether an antenuptial contract (ANC) can be changed — either before or after the wedding. The answer depends entirely on when you want to make the change and what kind of change you are seeking. South African law draws sharp distinctions between modifications made before marriage, amendments after registration, rectifications of errors, and changes to the marital regime itself.
Each follows a completely different legal path, with vastly different costs and consequences.This article is the definitive guide to every type of change that can (and cannot) be made to an antenuptial contract under South African law.
Before the marriage is solemnised and the contract is registered at the Deeds Office, the parties enjoy complete freedom to modify, amend or even revoke their antenuptial contract. At this stage, the contract is still a draft agreement between two prospective spouses and has not yet acquired the legal force of a registered notarial deed.To make pre-marriage modifications effective, a new notarial deed must be executed and registered in the deeds registry.
In practice, this means your Notary Public will prepare an amended or entirely new version of the contract, which both parties sign in the presence of two competent witnesses. The amended contract is then lodged for registration at the Deeds Office in the ordinary course.There is no limit on the number of changes you can make before the wedding, provided the amendments are agreed upon by both parties and the final contract is executed and registered before the marriage takes place.
Before the wedding, virtually any term of the antenuptial contract can be changed, provided the amended clause is not illegal, immoral, or contrary to public policy (contra bonos mores). Common pre-marriage modifications include:
Including or excluding the accrual system. The parties may decide to change from accrual to no accrual, or vice versa, at any point before the wedding.
Adjusting the accrual sharing ratio. Instead of the standard 50/50 split prescribed by the Matrimonial Property Act, the parties may agree to a different ratio — for example, 60/40 or 70/30.
Adding conditions to the accrual system. The parties may make the accrual system applicable only after the marriage has lasted a specified period (for example, five years), or only after a child has been born. A typical clause might read: "The accrual system referred to in Chapter 1 of Act 88 of 1984 shall only apply to the marriage after the marriage has subsisted for a continuous period of five (5) years."
Excluding specific assets from the accrual. The parties may list particular assets — a family farm, a business interest, an inheritance, a specific investment portfolio — that will be excluded from the accrual calculation entirely.
Including or excluding donations between spouses. By default, donations between spouses do not form part of the accrual calculation. However, the parties may agree otherwise in their contract, stipulating that inter-spousal donations will be taken into account.
Adding or amending donation clauses. The contract may include specific donations from one spouse to the other — for example, the donation of a motor vehicle or a life insurance policy. These clauses can be added, removed or amended before the marriage.
Including or amending a succession clause (pactum successorium). The parties may include a provision that the surviving spouse will inherit the estate, or a specified portion, of the first-dying spouse. This clause can be modified before the wedding.
Including third parties. If a parent or third party is making a donation to one of the spouses in terms of the contract, the terms of that donation can be modified or removed before the marriage, provided all parties to the contract agree.Changing the commencement values.
The declared net value of each party's estate at the commencement of the marriage can be updated to reflect the most current position. This is important because the commencement value determines how the accrual is calculated at the end of the marriage.
Even before the marriage, the parties cannot include any clause that is contra bonos mores — against public policy. This means the amended contract may still not contain provisions that violate constitutional rights, undermine the essential nature of marriage, usurp the powers of the court, or are otherwise prohibited by law. For a comprehensive discussion, see our article on prohibited and unenforceable clauses in antenuptial contracts.
This is the single most important principle to understand: once the antenuptial contract has been registered at the Deeds Office and the marriage has been solemnised, the contract cannot be altered by agreement between the spouses alone (inter partes).The terms and conditions of a registered antenuptial contract are, as a general rule, fixed for the duration of the marriage.
The parties cannot simply execute a new notarial deed to add, delete or amend clauses. They cannot agree between themselves to switch from accrual to no accrual, change the sharing ratio, add new donations, or alter the excluded assets. Any such private agreement would have no legal force or effect.This principle of immutability exists to protect third parties — particularly creditors — who have relied on the terms of the registered contract when extending credit, entering into business arrangements, or otherwise dealing with the spouses. If the terms of an ANC could be changed at will after registration, it would undermine the certainty and public notice function that registration is designed to provide.
The principle was reinforced in a significant Constitutional Court judgment delivered on 21 January 2026, which dealt with a case where spouses attempted to sign an antenuptial contract years after their customary marriage had already been concluded. The Court confirmed that once a marriage exists, an antenuptial contract can no longer validly be concluded.
The agreement the parties had signed was treated as a postnuptial contract, which is only legally effective if approved by a court under Section 21 of the Matrimonial Property Act. Because no court approval had been obtained, the agreement was declared invalid and unenforceable.The judgment serves as a powerful reminder: matrimonial property consequences cannot be changed by private agreement once a marriage exists. Court approval is always required.
South African law draws a clear distinction between amending an antenuptial contract (changing its substantive terms) and rectifying an error (correcting a factual mistake). While the former is prohibited without court intervention, the latter is expressly permitted under certain circumstances.
Section 4(1)(b) of the Deeds Registries Act 47 of 1937 allows for an amendment to rectify a clerical or factual error in a registered antenuptial contract. This provision permits corrections to be made by means of an application to the Registrar of Deeds, without requiring a court order. Errors that can be rectified under this provision include:An error in the name of a party (for example, a misspelling or the omission of a middle name).
An error in a party's date of birth. An incorrect identity number. An error in a property description (for example, an incorrect erf number or township name). An incorrect life insurance policy number. A typographical or clerical error in the text of the contract.The critical limitation is that this process may only be used to correct errors. It cannot be used to change the substantive conditions of the contract.
You cannot use a Section 4(1)(b) rectification to delete a clause, add a new clause, change the accrual system, alter the sharing ratio, amend the commencement values, or make any other substantive amendment. Any attempt to do so would be refused by the Registrar of Deeds.
The Notary who originally executed the contract (or a successor Notary) prepares a rectification deed identifying the specific error and the correction to be made. Both parties must consent to the rectification. The rectification deed is then lodged at the Deeds Office for endorsement on the original contract.This process is relatively straightforward and inexpensive compared to a court application. However, it is strictly limited to correcting genuine errors — not to changing your mind about the terms of your contract.
There are cases where the registered antenuptial contract does not accurately reflect the true intentions of the parties at the time it was executed. This may occur due to a drafting error by the Notary, a misunderstanding between the parties and their legal advisor, or an omission that resulted in the contract not containing a clause the parties had agreed upon.
In these circumstances, both parties may apply to the High Court for an order to rectify the contract to reflect their true intentions. This is not an amendment — it is a rectification, and the distinction matters. The court is not changing the agreement; it is correcting the written document to match the agreement that already existed between the parties.
For a court to grant a rectification order, the applicants must demonstrate that there was a common intention between the parties at the time the contract was executed that differed from what was recorded in the written document. The error must have been a mistake — not a change of heart. Both parties must agree to the rectification. If any third party (such as a parent who made a donation in terms of the contract) is affected, that party must also consent.
The court must be satisfied that no creditor or other person will be prejudiced by the rectification.If the court is satisfied that the rectification genuinely reflects the original agreement between the parties, it will grant an order directing the Registrar of Deeds to endorse the contract accordingly.This remedy is only available where the written contract does not reflect the true agreement. It is not available where the parties simply wish they had agreed to different terms.
If the parties genuinely wish to change the terms of their matrimonial property regime — as opposed to correcting an error — they must apply to the High Court for permission to enter into a postnuptial contract under Section 21(1) of the Matrimonial Property Act 88 of 1984.This is the only mechanism by which the substantive terms of a marriage's property regime can be altered after the wedding. It is a formal, court-supervised process with strict procedural requirements.
The parties married without an ANC (and are therefore in community of property) and now wish to change to out of community of property. The parties married with an ANC excluding accrual and now wish to include the accrual system (or vice versa). The parties wish to change the sharing ratio of the accrual system. The parties wish to add, remove or amend donation clauses in an existing ANC. The parties wish to exclude additional assets from the accrual calculation that were not excluded in the original ANC.
The Matrimonial Property Act and the guiding principles established in Lourens et Uxor 1986 (2) SA 291 (C) require the following:
Joint application. Both spouses must apply jointly to the High Court. One spouse cannot bring the application without the other's consent and participation.
Sound reasons. The applicants must demonstrate valid reasons for the proposed change. Common reasons include the need to protect assets from business creditors, freedom to trade independently, estate planning requirements, or the realisation that the default community of property regime does not suit the parties' circumstances.Notice to the Registrar of Deeds. Notice of the application must be given to the Registrar of the relevant Deeds Office at least seven days before the hearing, in terms of Section 97(1) of the Deeds Registries Act.
Publication. Notice of the proposed change must be published in the Government Gazette and in two local newspapers at least two weeks before the date on which the application will be heard.
Creditor notification. All known creditors of both spouses must be notified by certified post.
No prejudice. The court must be satisfied that no creditor or other person will be prejudiced by the proposed change.
Full disclosure. The application must contain sufficient information about the parties' assets and liabilities to enable the court to assess whether the requirements are met.
Draft contract annexed. A draft of the proposed postnuptial contract must be annexed to the application so that the court can assess its terms.
Domicile and residence. The application must disclose where the parties are domiciled and, if different, where they are currently resident.
Preservation of creditor rights. The court order and the proposed contract must contain a provision preserving the rights of pre-existing creditors.
If the court is satisfied that all requirements have been met, it will grant an order authorising the parties to execute a postnuptial contract which, once registered at the Deeds Office, will have the effect of an antenuptial contract regulating their future matrimonial property regime.
The parties must then appear before a Notary Public to execute the postnuptial contract in notarial form. The Notary lodges the executed contract, together with the court order, at the Deeds Office for registration within the time frame specified in the court order (usually three months). The change in the marital regime only becomes effective against third parties once registration is complete.
A postnuptial contract is significantly more expensive than an antenuptial contract because of the High Court application, the mandatory publications and creditor notifications, the involvement of an advocate, and the extended timeline.At Louwrens Koen Attorneys, our all-inclusive professional fees for a postnuptial contract application typically range from R15,000 to R25,000, depending on the complexity of the estate, the number of creditors to be notified, and specific advertisement costs. The entire process — from initial instruction to final registration — typically takes three to four months.By contrast, an antenuptial contract registered before the marriage costs R1,950 all-inclusive and can be completed in as little as one day.
A separate but related scenario arises where the parties did execute an antenuptial contract before their marriage, but the contract was not registered at the Deeds Office within the prescribed three-month period (or six months for contracts executed outside South Africa). In this case, the unregistered contract is valid and binding between the parties (inter partes), but it has no force or effect against third parties — meaning creditors can treat the marriage as if it were in community of property.Section 88 of the Deeds Registries Act provides a remedy.
The parties may jointly apply to the High Court for permission to effect the late registration of the contract. If the court is satisfied that the terms of the agreement were concluded before the marriage and that the late registration will not prejudice any third parties, it may authorise the Notary to register the contract.The effect of a court order under Section 88 is retrospective — the contract is deemed to have been effective from the date of marriage, as if it had been registered timeously. This is a significant advantage over a postnuptial contract, which only takes effect from the date of registration.
There is no fixed time limit for bringing a Section 88 application, but the longer the delay, the more difficult it becomes to convince the court that no third parties will be prejudiced. Courts are particularly cautious where many years have passed since the marriage, as creditors may have extended credit in reliance on the parties being married in community of property.The application must still comply with the notice, publication and creditor notification requirements that apply to postnuptial applications. The cost is comparable to a postnuptial contract application.
The Matrimonial Property Act allows extensive customisation of the accrual system, but these modifications must be incorporated into the antenuptial contract before the marriage. They cannot be added afterwards without a court-approved postnuptial process.Common modifications to the standard accrual include:
Conditional application. The accrual system applies only after the marriage has lasted a specified number of years, or only after a child has been born.
Altered sharing ratios. Instead of the standard 50/50 split, the parties agree to a different percentage — for example, 30/70 in favour of the spouse who may sacrifice career opportunities to raise children.
Including inter-spousal donations. By default, donations between spouses are excluded from the accrual. The parties may agree that such donations will be taken into account.
Including inheritances and legacies. By default, inheritances, legacies and donations from third parties are excluded from the accrual. The parties may agree to include them.
Insolvency condition. The parties may stipulate that the accrual system becomes inoperative if either party's estate is insolvent at the time of dissolution.
Exclusion of specific assets. The parties may list particular assets that will be excluded from the accrual calculation entirely — such as a family business, a specific property, or a trust interest.All of these modifications are perfectly permissible, provided they are agreed upon before the wedding and incorporated into the ANC before registration. This is one of the many reasons why it is essential to obtain proper legal advice before your antenuptial contract is finalised, because once it is registered and you are married, changing these terms requires a High Court application.
Regardless of what is agreed upon in an antenuptial contract — whether before or after marriage — certain consequences of marriage are imposed by law and cannot be contracted out of. These include:The obligation to maintain a joint household and cohabit as married persons. The duty of mutual support and maintenance. The obligation to treat each other with decency, fairness and respect. The obligation of fidelity and commitment.
The right of each spouse to bind the other for household necessaries. The right of either spouse to apply to the court for a redistribution order under Section 7(3) of the Divorce Act (in the case of marriages subject to the accrual system, as confirmed by the Constitutional Court in EB v ER 2023).No modification, amendment, rectification or postnuptial contract can override these fundamental incidents of marriage. Any clause attempting to do so would be struck down as contra bonos mores.
The contract can be freely modified, amended, supplemented or revoked, provided the amended contract is executed before a Notary and registered at the Deeds Office before the marriage. No court approval is required. Cost: included in the standard ANC fee of R1,950.
Clerical and factual errors (names, ID numbers, property descriptions, policy numbers) can be corrected via a Section 4(1)(b) rectification application to the Registrar of Deeds. No court order is required. Substantive terms cannot be changed through this process. Cost: relatively modest.
If the registered contract does not reflect the true agreement between the parties, both spouses may apply to the High Court for a rectification order. The court corrects the document, not the agreement. All parties must consent. Cost: depends on complexity; requires legal representation.
If the parties wish to genuinely change their matrimonial property regime (not merely correct an error), they must apply to the High Court under Section 21(1) of the Matrimonial Property Act for permission to execute a postnuptial contract. This involves mandatory publications, creditor notifications, full disclosure, and court approval. Cost: R15,000 to R25,000. Timeline: approximately three to four months.
If the ANC was signed before the marriage but not registered within the prescribed period, the parties may apply to the High Court under Section 88 of the Deeds Registries Act for late registration. If granted, the order has retrospective effect from the date of marriage. Cost: comparable to a postnuptial application.
The message from South African law is clear: it is infinitely easier, faster and cheaper to get your antenuptial contract right before the wedding than to try to change it afterwards. Before the marriage, your Notary can make any modification you request in a matter of hours. After the marriage, even a minor substantive change requires a High Court application costing tens of thousands of rands and taking months to complete.If you are not yet married, take the time to discuss your ANC thoroughly with your Notary. Consider your circumstances carefully. Think about the accrual system, the sharing ratio, asset exclusions, donation clauses and succession provisions. Ask questions. Make changes. Finalise a contract that truly reflects your wishes and protects both parties.If you are already married and need to make changes, contact our office. We handle both antenuptial contracts (before marriage) and postnuptial applications (after marriage), and we can advise you on the most appropriate and cost-effective path forward.
Antenuptial Contracts (Before Marriage): R1,950 all-inclusive. Drafted within 24–48 hours. Apply online at www.antenuptialcontracts.co.za/apply.
Postnuptial Contracts (After Marriage): R20,000 to R25,000. Full High Court application, creditor notification, and Deeds Office registration. Apply online at www.postnuptialcontracts.co.za.
Rectifications and Late Registrations: Contact our office to discuss your specific situation.
Louwrens Koen Attorneys
Notaries Public | Pretoria
Tel: 087 001 0733
Email: admin@louwrens-koen.co.za
This article is provided for general informational purposes and does not constitute legal advice. Each couple's circumstances are unique, and specific legal questions should be discussed with a qualified attorney or Notary Public.
