An antenuptial contract (ANC) is one of the most powerful tools in South African family law. It allows you and your future spouse to structure your matrimonial property regime to suit your unique circumstances — whether that means including the accrual system, excluding it entirely, or customising how specific assets and liabilities are treated.
However, freedom of contract is not absolute. The law draws clear boundaries around what may — and what may not — appear in your ANC.
If a prohibited clause finds its way into your contract, the consequences can be severe. The Registrar of Deeds may refuse to register the ANC altogether. If that refusal happens close to your wedding date, you could find yourself married in community of property by default — the very outcome you were trying to avoid. Even if an offending clause only comes to light years later during divorce proceedings, a court will declare it null and void, potentially unravelling the financial arrangements you believed were in place.
This is precisely why an ANC should always be drafted and attested by an experienced Notary Public who understands these limitations — not downloaded as a cheap template from the internet.
South African law gives prospective spouses considerable freedom when drafting their antenuptial contract. You may include any provision or modification you wish — provided it does not cross certain boundaries established by common law, legislation and the Constitution.
A clause in an ANC will be deemed null and void if it is:
Contra bonos mores — against the good morals of the community. The Latin phrase translates as "against good customs" and reflects society's sense of what is decent, fair and just.
Against public policy — inconsistent with the values underpinning South African law. Since 1994, the values enshrined in the Constitution — including human dignity, equality and freedom — have become the primary yardstick for determining public policy.
Contrary to nature, reason or morality — provisions that defy logic or offend basic moral principles.
Prohibited by statute — in conflict with specific legislation such as the Matrimonial Property Act 88 of 1984, the Divorce Act 70 of 1979, or the Children's Act 38 of 2005.
Designed to take over the powers of the court — attempting to usurp judicial authority over matters that the law reserves for a judge to decide, such as child custody or the granting of a divorce.
Calculated to lead to separation or dissolution — intended to encourage, incentivise or make provision for the breakdown of the marriage in a manner that undermines the institution itself.
What happens to the rest of the contract? In most cases, if a prohibited clause is included, that specific clause alone is struck out as null and void. The remainder of the ANC will typically survive, provided the offending clause can be severed without destroying the contract's essential purpose. However, if the Deeds Office identifies the problem during the registration process, the entire contract may be rejected — requiring re-execution before the Notary Public and potentially delaying your wedding.
The Bill of Rights in the Constitution of the Republic of South Africa, 1996, protects fundamental freedoms that no private contract can override. The following types of clauses directly conflict with constitutionally protected rights and are unenforceable.
An undertaking by a spouse to adopt, convert to, or maintain the religion or faith of the other spouse is unenforceable. Section 15 of the Constitution protects the right to freedom of conscience, religion, thought, belief and opinion. You cannot contractually require your partner to change their faith as a condition of the marriage. If such a clause is included, a court will strike it out, but the rest of the ANC will typically remain valid.
A clause requiring a spouse to stop working, or prohibiting a spouse from pursuing a profession, trade or career, is invalid. This remains true even if the clause is framed as applying only upon the birth of a child — for example, "the wife shall cease employment permanently upon the birth of the couple's first child." Such a clause infringes upon the right to freedom of trade, occupation and profession (Section 22 of the Constitution) and the right to human dignity (Section 10).
Any clause enforcing or requiring a change of gender or race, or prohibiting a spouse from associating with specific persons or groups, violates the rights to equality (Section 9), human dignity (Section 10) and freedom of association (Section 18) in the Constitution.
The Matrimonial Property Act abolished the husband's so-called "marital power" over the person and property of his wife for all marriages entered into after 1 November 1984. Any clause that attempts to recreate or retain this power — for example, requiring the wife to obtain her husband's consent before entering into any financial transaction independently — is null and void. It is contrary to the constitutional right to equality and human dignity.
Certain provisions conflict with the essential consequences of marriage itself — the legal duties and obligations that define the marital relationship. These clauses are contra bonos mores because they strike at the very heart of what a marriage is meant to be.
Any clause that permits, encourages or condones extramarital affairs is against public policy. Marriage carries a legal duty of fidelity, and no contractual provision can waive this fundamental obligation. A clause stating, for example, that "neither party shall object to the other maintaining intimate relationships outside the marriage" would be struck down.
Important nuance — infidelity deterrents: While you cannot permit adultery, a clause that seeks to deter infidelity by attaching a financial consequence may be enforceable in certain circumstances. For example, a clause providing that a spouse who causes a divorce through a proven extramarital affair will pay the innocent spouse a fixed sum has been considered by our courts.
Such a clause may be upheld if its purpose is to preserve the marriage rather than to punish, and if the amount is not unconscionable. However, clauses of this nature require very careful drafting by an experienced Notary and are best discussed during a consultation.
The duty to live together (the consortium omnis vitae) is one of the essential consequences of marriage in South African law. A clause declaring that the parties will not live together after the marriage is calculated to undermine the marriage itself and is contra bonos mores.
Any clause that permits, encourages or requires either spouse to engage in criminal conduct is self-evidently unlawful and unenforceable. This extends to any provision that would make a spouse complicit in illegal activity.
South African law reserves certain decisions for the judiciary. No private contract — including an ANC — can strip the courts of their inherent or statutory jurisdiction over these matters.
A clause that purports to automatically award custody (care and contact) of children to a specific parent upon divorce is unenforceable. In South African law, the "Best Interests of the Child" principle is the supreme standard. The High Court, acting as the upper guardian of all minors, must determine care and contact arrangements based on the child's circumstances at the time of divorce — not according to a pre-marriage agreement drafted years earlier. No contract can override this judicial function.
A clause requiring all marital disputes to be resolved exclusively through arbitration is problematic. While arbitration is a valid dispute resolution mechanism in commercial contexts, certain family law matters — including divorce, custody, maintenance and the status of persons — are reserved for judicial determination. A clause that attempts to remove these matters entirely from the court's authority will be struck down as an impermissible ouster of jurisdiction. Mediation clauses, by contrast, are generally permissible because they do not prevent a party from ultimately approaching the court.
A clause stating that neither spouse shall have the right to ask for an order of forfeiture of patrimonial benefits, or to share in the accrual of the other's estate upon divorce, attempts to take away a right that legislation specifically grants. Section 9 of the Divorce Act grants the court a discretion to order forfeiture, and the Matrimonial Property Act governs the accrual claim. Contractual provisions that seek to pre-emptively eliminate these statutory remedies are unenforceable because they purport to override the court's discretion.
Note on the EB v ER Constitutional Court ruling (2023): The Constitutional Court declared that section 7(3)(a) of the Divorce Act is unconstitutional to the extent that it limited redistribution claims to marriages entered into before 1 November 1984. As a result, spouses married out of community of property without accrual on or after that date may now also apply for a redistribution of assets on divorce. This landmark ruling reinforces the principle that a contract cannot absolutely extinguish a spouse's right to seek equitable relief from the court.
While you can express an intention to be self-sufficient, a clause that completely and irrevocably waives a spouse's right to claim maintenance in the future is viewed with scepticism by the courts. If a spouse is left destitute following a divorce, the court retains a statutory power under the Divorce Act to override such a clause to ensure that basic social justice is served. A total maintenance waiver is therefore not reliably enforceable.
A clause stating that one spouse shall not have the power to bind the other spouse for household necessaries is unenforceable. Under South African common law, both spouses have a duty to contribute to the reasonable household expenses of the marriage. This duty exists regardless of the matrimonial property regime and cannot be contracted away in an ANC. The rationale is that both parties must be able to provide for the practical needs of the household — including food, clothing, shelter, medical expenses and the education of children.
Unlike some celebrity prenuptial agreements reported in American media, South African courts do not recognise so-called "lifestyle clauses." Provisions dictating a spouse's weight, physical appearance, grooming habits, or the allocation and frequency of household chores are considered contra bonos mores. They infringe upon individual dignity and bodily autonomy and are legally unenforceable. An ANC is a financial contract governing your matrimonial property regime — it is not a code of personal conduct.
A common source of confusion is whether specific future assets can be excluded from the accrual system. While the Matrimonial Property Act allows spouses to exclude specific, identified assets from the accrual calculation, the legal position regarding the blanket exclusion of future (not-yet-acquired) assets is unsettled.As the law currently stands, clauses that attempt to exclude broad categories of future assets from the accrual (such as "all immovable property acquired by either spouse during the marriage") may be deemed unenforceable.
The safest approach is to list specific, identifiable assets that you wish to exclude and to consult with your Notary about the enforceability of any forward-looking exclusion clause.Certain assets are automatically excluded from the accrual by operation of law, including inheritances, legacies and donations received from third parties during the marriage — unless the spouses specifically agree to include them.
The consequences depend on when the problem is discovered:
Before registration: The Registrar of Deeds may refuse to register the ANC. This can be rectified by removing the offending clause and re-executing the contract before the Notary. However, if this happens on or near the wedding date, there may not be enough time — and the parties will be married in community of property by default.
After registration, during the marriage: The clause lies dormant and has no practical effect while the marriage subsists. Most couples never discover the problem.
Upon divorce or death: A court will declare the offending clause null and void. The clause is simply severed from the contract, and the remaining provisions continue to apply. However, if a party relied on that clause for their financial planning, the consequences can be significant and costly.
For completeness, the following types of provisions are generally permissible in a South African ANC and should not be confused with the prohibited clauses above:
Customised accrual percentages. The default is a 50/50 split, but spouses may agree to any ratio — such as 60/40 or 70/30 — provided both parties consent freely.
Conditional accrual clauses. A provision that the accrual system will only take effect after the marriage has lasted a certain period (for example, five years) or upon the birth of a child.
Insolvency-linked accrual exclusion. A clause providing that the accrual system will not operate if either party's estate is insolvent at the time of dissolution. This is not detrimental to creditors and is generally accepted.
Donations between spouses. The ANC may include donations of specific assets from one spouse to the other, which are exempt from donations tax under Section 56(1)(b) of the Income Tax Act.
Pactum successorium. A succession clause allowing the surviving spouse to inherit the estate (or a portion) of the first-dying spouse. This is an exception to the general rule against agreements about future inheritance.
Exclusion of specific, identified assets from accrual. Provided the assets are clearly described and their value excluded from the commencement value declaration.
Method of accrual payment. Spouses may agree on how the accrual claim will be settled — for example, by transfer of a specific asset rather than a cash payment.
The internet is flooded with cheap ANC templates, downloadable PDFs, and fill-in-the-blank contract generators. These documents frequently contain prohibited clauses — either because they were drafted without proper legal knowledge or because they were copied from American prenuptial agreement templates that have no application in South African law.A Notary Public who specialises in antenuptial contracts will ensure that your contract:
At Louwrens Koen Attorneys, we have drafted and registered thousands of antenuptial contracts over more than 25 years. Our all-inclusive fee of R1,950 covers the drafting, notarial execution and registration at the Deeds Office — with no hidden costs.If you have questions about what can and cannot be included in your antenuptial contract, contact us for a free consultation before your wedding day.
Louwrens Koen Attorneys
Notaries Public | Pretoria
Tel: 087 001 0733
Email: admin@louwrens-koen.co.za
Apply online: www.antenuptialcontracts.co.za/apply
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.
