Thinking about getting a prenup before your wedding? You are not alone — and you probably have questions. Below we answer every common question about prenups in South Africa, from the basics to the details that most guides leave out.
A prenup — short for prenuptial agreement — is a legal contract signed by two people before they get married. In South African law, a prenup is formally called an antenuptial contract (ANC). It determines how the couple's finances, assets and debts will be managed during the marriage and when the marriage ends. Without a prenup, South African law automatically treats the marriage as in community of property, meaning all assets and debts are shared equally.
Yes. A prenup, a prenuptial agreement, an antenuptial contract and a marriage contract are all exactly the same legal document. "Antenuptial contract" is the formal legal term used in South African legislation. "Prenup" is the popular term. The document, its legal effect and the registration process are identical regardless of what you call it.
If you want to avoid being married in community of property, you need a prenup. Without a prenup, all your assets and debts — past, present and future — are shared with your spouse in a single joint estate. If your spouse incurs debt, creditors can seize your personal assets. If your spouse is declared insolvent, both of you lose everything. A prenup protects you from these risks while still allowing you to share wealth fairly through the accrual system.
A prenup is not about trust — it is about financial planning. You trust your spouse, but you may not trust their future business partner, their employer's financial stability, or the economy. A prenup protects you from external risks like creditors, insolvency and business failure — risks that have nothing to do with trust between spouses. Think of a prenup like insurance: you hope you never need it, but you would be reckless not to have it.
No. A prenup operates throughout your entire marriage, not only on divorce. During the marriage, your prenup protects you from your spouse's debts, enables you to transact independently, shields your business from your spouse's creditors, and facilitates tax-efficient estate planning. Divorce is only one of many scenarios where a prenup serves its purpose. Most of the benefits of a prenup are enjoyed during a happy, ongoing marriage.
At Louwrens Koen Attorneys, a prenup costs R1,950 all-inclusive. This covers the consultation, drafting, notarial execution and Deeds Office registration. There are no hidden fees. By comparison, a postnuptial contract (to change your marital regime after the wedding) costs between R15,000 and R25,000 because it requires a High Court application.
A prenup is one of the most affordable legal documents you will ever sign. At R1,950 it costs less than most wedding cakes. Compare that to the cost of not having a prenup: joint liability for your spouse's debts, a contested divorce involving a joint estate, or a High Court postnuptial application costing R15,000 to R25,000. A prenup is not an expense — it is an investment that pays for itself many times over.
A prenup must be signed before the marriage ceremony takes place. There is no minimum time requirement — you can sign a prenup the morning of your wedding if necessary — but we recommend starting the process as early as possible to avoid unnecessary stress. Most couples begin the prenup process two to four weeks before the wedding. We can draft a standard prenup within 24 to 48 hours of receiving your application.
No. A prenup (antenuptial contract) can only be signed before the marriage. This is a firm legal requirement with no exceptions. If you are already married without a prenup, your only option is a postnuptial contract, which requires a High Court application and is significantly more expensive. This is why it is always better to sign a prenup before the wedding.
No — and most of our prenup clients don't. We send you the prenup and a power of attorney by email. Both parties sign the power of attorney before a commissioner of oaths (available at most police stations, banks and accounting firms) and courier it back to our office. Our Notary then executes the prenup on your behalf. We serve prenup clients in every province this way — from Cape Town to Limpopo.
We typically draft a prenup within 24 to 48 hours of receiving your application. Once both parties have signed the power of attorney and couriered it to our office, our Notary executes the prenup and issues a certificate for your marriage officer the same day. The entire prenup process — from application to certificate — can be completed within a few days.
Both types of prenup protect you from your spouse's debts and give you separate estates. The difference is what happens when the marriage ends. A prenup with accrual means you share the growth in your estates during the marriage — usually 50/50. A prenup without accrual means there is no sharing at all. Most couples choose a prenup with accrual because it provides both protection and fairness. For a detailed comparison, see our page on prenup with accrual vs without accrual.
For most South African couples, a prenup with accrual is the best choice. It protects both spouses from each other's debts while ensuring that the wealth built during the marriage is shared fairly. A prenup without accrual is typically better for second marriages, older couples with established wealth, or couples with children from previous relationships. Our Notary can help you decide which prenup is right for your specific circumstances — the consultation is included in the R1,950 fee.
Your prenup determines how your assets are divided on divorce. If you have a prenup with accrual, the accrual is calculated and the spouse with the smaller accrual receives a balancing payment. If you have a prenup without accrual, each spouse keeps their own estate with no sharing. Your prenup may also contain other provisions — such as donation clauses or succession provisions — that affect the financial outcome of the divorce.
Your prenup continues to operate on the death of a spouse. If you have a prenup with accrual, the surviving spouse's accrual claim is calculated against the deceased estate. If the prenup includes a succession clause (pactum successorium), the surviving spouse may inherit specific assets or the entire estate as provided in the prenup — regardless of what the deceased's will says. A prenup is therefore an important estate planning tool.
Not by agreement between the spouses alone. Once a prenup is registered and the marriage is concluded, the terms are fixed. To change the terms, you must apply to the High Court for permission to enter into a postnuptial contract. This is an expensive and time-consuming process. Errors in a prenup (such as a misspelled name or incorrect ID number) can be corrected without a court order, but substantive changes always require court approval. This is why it is so important to get your prenup right before the wedding.
Before the marriage, yes — a prenup can be modified, amended or even revoked at any time before the wedding, provided both parties agree. After the marriage, a prenup cannot be cancelled. The only way to change the matrimonial property regime after marriage is through a court-approved postnuptial contract.
A prenup can include almost any provision, as long as it is not illegal, immoral or against public policy. Common prenup provisions include: choosing whether the accrual system applies; excluding specific assets from the accrual calculation; specifying a different sharing ratio (instead of 50/50); making the accrual conditional on the marriage lasting a certain period; including donations between spouses; and adding succession clauses to protect the surviving spouse. For a detailed discussion of what cannot be included, see our guide to prohibited clauses in prenups.
A prenup cannot include clauses that violate constitutional rights (such as forcing a spouse to change religion), undermine the nature of marriage (such as permitting adultery), usurp the powers of the court (such as pre-determining child custody), or waive fundamental marital obligations (such as maintenance). Any such clause in a prenup would be struck down as contra bonos mores (against public policy). The rest of the prenup remains valid — only the offending clause is affected.
Yes — protecting a business is one of the most common reasons for signing a prenup. Without a prenup, if your business faces financial difficulty, your spouse's personal assets can be seized by your business creditors because they form part of the joint estate. With a prenup, each spouse has a separate estate. Your business debts cannot be recovered from your spouse's assets, and vice versa. A prenup is the most cost-effective form of business risk protection available to a married couple.
Yes. A prenup is not only about protecting existing assets — it is about protecting the wealth you will build during your marriage and shielding yourself from debts your spouse may incur in the future. Over a 20- or 30-year marriage, the financial stakes become very significant regardless of where you start. A prenup at R1,950 before the wedding is incomparably cheaper than a postnuptial application at R20,000 to R25,000 after you realise you need one.
Especially then. Young couples have the most to gain from a prenup because the marriage is likely to last decades, during which assets, debts and business interests will accumulate. A prenup with accrual is specifically designed for this situation — it protects you both from risk while ensuring you share fairly in the wealth you build together. The R1,950 you spend on a prenup today could save you hundreds of thousands of rands over the course of your marriage.
A prenup is even more important for a second marriage. You may have existing assets you want to preserve, children from a previous relationship whose inheritance you want to protect, or commitments from a prior divorce settlement that must be maintained. A prenup — particularly one without accrual — ensures your existing estate remains separate and that your estate planning for your children is not disrupted by the new marriage.
Yes. A prenup can be entered into by parties marrying under the Marriage Act, the Civil Union Act, or the Recognition of Customary Marriages Act. Without a prenup, a customary marriage concluded after the commencement of the Act is automatically in community of property — just like a civil marriage. The prenup must be signed before the customary marriage is concluded.
Yes. The Civil Union Act 17 of 2006 provides that the same legal consequences — including all provisions of the Matrimonial Property Act — apply to civil unions. A prenup for a civil union is identical in form, process and legal effect to a prenup for a civil marriage.
A prenup is signed before the marriage. A postnuptial contract is signed after the marriage to change the existing matrimonial property regime. While a prenup is a straightforward notarial process costing R1,950, a postnuptial contract requires a High Court application, creditor notifications, Government Gazette advertisements, and costs between R15,000 and R25,000. A prenup takes days; a postnuptial contract takes three to four months. The message is simple: always sign a prenup before the wedding.
This is more common than you think, and it usually comes from a misunderstanding about what a prenup does. A prenup with accrual actually protects the lower-earning spouse by guaranteeing them a share of the wealth built during the marriage. It protects both parties from each other's debts and creditors. It is fair to both sides. An open conversation — ideally with a Notary who can explain the options neutrally — usually resolves the concern. If your partner still refuses, you should understand that without a prenup, you are accepting full joint liability for all their debts, past and future.
This is a normal part of the prenup discussion. The most common disagreement is between accrual and no accrual. Our Notary can walk both parties through the implications of each option and help you reach an agreement that works for your specific circumstances. In most cases, a prenup with accrual satisfies both parties — it provides protection for the wealthier spouse and fairness for the other.
The commencement value is the declared net value of each spouse's estate at the start of the marriage. It is recorded in the prenup (or in a separate statement within six months of the marriage) and is used to calculate the accrual when the marriage ends. If you do not declare a commencement value, it is presumed to be zero — meaning everything you own at the end of the marriage is treated as having been accumulated during the marriage.
To apply for a prenup with our office, you need: certified copies of both parties' identity documents (or passports for foreign nationals); details of each party's assets and liabilities (for the commencement value declaration if accrual applies); and the date and venue of the intended marriage. If a third party is making a donation in terms of the prenup, their identity document and details of the donation are also required.
Yes. A foreign national can sign a prenup in South Africa. If the foreign national cannot attend our office in person, the power of attorney process is used — the same process used by most of our clients. If the prenup is executed outside South Africa, it must be attested by a notary in that country and registered at a South African Deeds Office within six months of execution.
A prenup registered in South Africa is valid and enforceable in South Africa regardless of where the marriage ceremony takes place. However, its recognition in the foreign jurisdiction depends on that country's laws. If you are getting married abroad but intend to live in South Africa, a South African prenup is essential. If you intend to live abroad, you should also obtain legal advice in that country.
If your prenup was signed but not registered within three months of execution, it is valid between you and your spouse but has no legal effect against third parties such as creditors. This means creditors can treat your marriage as if it were in community of property. The solution is to apply to the High Court under Section 88 of the Deeds Registries Act for permission to effect the late registration of your prenup. This is a court process similar in cost to a postnuptial application.
You can request a Deeds Office search to verify that your prenup was registered. Our office can assist with this. Once registered, your prenup is a public record and can be obtained from the Deeds Office by any interested party.
If your prenup is properly registered at the Deeds Office, creditors are bound by it. They cannot claim against the separate estate of the non-debtor spouse. However, under Section 21 of the Insolvency Act, if your spouse is sequestrated, the trustee can temporarily take possession of the solvent spouse's assets until ownership is proven. Having a registered prenup and maintaining clear records of asset ownership (separate bank accounts, documented purchases) is the strongest defence against creditor claims.
Contact our office for a free initial discussion. Our Notary Public has helped thousands of couples with their prenups and can answer any question you may have.R1,950. All-inclusive. No hidden costs. No office visit required.
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Related pages: What Is a Prenup? | Prenup With Accrual vs Without Accrual | Prenup Cost and Process
Louwrens Koen Attorneys
Notaries Public | Pretoria
Serving clients nationwide
www.antenuptialcontracts.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.
