Getting married is one of the most significant legal events of your life. While wedding planning naturally focuses on the ceremony, the venue and the guest list, the financial and legal structure of your marriage deserves equal attention. In South Africa, the single most important legal decision you will make before your wedding is whether or not to sign an antenuptial contract (ANC).
If you do not sign an ANC before your marriage is solemnised, you will automatically be married in community of property by operation of law. This means every asset and every debt — past, present and future — becomes jointly owned. Every financial decision requires your spouse's consent. And if your spouse is sued, declared insolvent or accumulates debt, your personal assets are fully exposed.
An ANC is not about planning for divorce. It is about responsible financial planning for your marriage, your family and your future. Since the introduction of the accrual system in 1984, there remains no sound reason why any couple should marry without one.Here are the most important reasons to register an antenuptial contract before you walk down the aisle.
This is the single most common reason couples register an ANC — and the most important one.
Without an ANC, you are married in community of property. This means you and your spouse share one joint estate that includes all assets and all debts. If your spouse incurs debt — whether from a personal loan, a credit card, a failed business venture or even a legal judgment — the creditors can seize assets from the joint estate. That includes your car, your savings, your investments and even your home.
With an ANC, each spouse retains a separate estate. One spouse's creditors cannot hold the other spouse responsible for debt repayment. Your personal assets remain in your name and under your control.This protection is particularly critical if your spouse brings pre-existing debt into the marriage. Without an ANC, that debt becomes your joint liability on your wedding day.
Business protection is the most frequently cited reason for entering into an antenuptial contract.
If you are married in community of property and your business faces financial difficulty, your spouse's personal assets — their home, car, savings and investments — are all at risk. This is because the joint estate is one pool from which all creditors can claim. The business debts are the marriage's debts.
By choosing a marriage out of community of property (with or without accrual), you create a legal separation between your estates. If your business fails or faces a lawsuit, your spouse's assets are shielded from your business creditors. The same applies in reverse — if your spouse runs a business, your assets are protected from their commercial risks.
This is not merely a theoretical concern. South Africa's economic environment means that businesses face real and present risks every day. An ANC is the most cost-effective form of financial risk management available to a married couple.
When you are married in community of property, neither spouse can enter into certain transactions without the written consent of the other. This includes selling or mortgaging immovable property, signing suretyship agreements, and entering into hire-purchase or credit agreements above prescribed limits.
In a marriage out of community of property, each spouse has full contractual freedom. You can buy, sell, borrow, invest and sign contracts without needing your spouse's signature. This is essential for anyone who conducts business, works as a professional, or simply values the ability to manage their own finances independently.
If your spouse is sequestrated (declared insolvent), Section 21 of the Insolvency Act 24 of 1936 provides that the solvent spouse's property temporarily vests in the trustee of the insolvent estate. The solvent spouse must then prove ownership of their assets to have them released.
While this provision applies to all married couples — including those with an ANC — having separate estates makes it significantly easier to prove which assets belong to you. If you are married in community of property, there is only one joint estate, and it is automatically sequestrated in full. Both spouses become insolvent together.
An ANC, combined with good record-keeping (separate bank accounts, documented purchases, clear asset records), provides the strongest foundation for protecting your assets in the event of your spouse's insolvency.Furthermore, 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. The ANC serves as definitive proof that the property belongs to the solvent spouse's separate estate.
An ANC is not just a protective mechanism — it is a powerful estate planning tool with significant tax advantages.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 vehicle for transferring assets and balancing your respective estates before or during your marriage.Additional tax benefits available to married couples include:
No capital gains tax on inter-spousal transfers. Transfers of assets between spouses are exempt from Capital Gains Tax under the Income Tax Act.
No transfer duty on property transfers between spouses. If one spouse transfers immovable property to the other, no transfer duty is payable.
Estate duty exemption on bequests to a spouse. Bequests to a surviving spouse are exempt from estate duty under the Estate Duty Act.
These exemptions allow couples to use the ANC as a strategic tool for wealth redistribution, estate equalisation, and long-term tax planning — all perfectly legally.
Many couples hesitate to sign an ANC because they believe it means "what's mine stays mine" with no sharing. This is a common misconception.The accrual system — which applies automatically to all marriages out of community of property unless specifically excluded — gives you the best of both worlds. It works like a fairness formula:
What you bring in stays yours. Assets you owned before the marriage are recorded as your "commencement value" and remain yours.
What you build together is shared. The growth in each spouse's estate during the marriage (the "accrual") is calculated and shared when the marriage ends — whether by death or divorce.
This means that if one spouse earns more while the other stays home to raise children or support the household, the lower-earning spouse still shares in the wealth accumulated during the marriage. It is fair, equitable and protective — without exposing either spouse to the other's debts or creditors.
The accrual system can also be customised. You and your Notary can agree on a different sharing ratio (not necessarily 50/50), apply conditions (such as the accrual only taking effect after the marriage has lasted a specified period), or exclude specific assets from the calculation.
If you are entering the marriage with significant assets — a property, savings, an inheritance, or a share in a family business — an ANC ensures these remain in your separate estate.Without an ANC, these assets are absorbed into the joint estate and become co-owned by both spouses. In the event of divorce, your pre-marital assets would form part of the estate to be divided. In the event of your spouse's insolvency, your pre-marital assets would be at risk.An ANC with accrual protects your pre-marital assets while still allowing you to share the growth achieved during the marriage. If there are specific assets you wish to exclude even from the accrual calculation — such as a family farm, a trust interest or a particular investment — these can be listed as excluded assets in the contract.
If you are entering a second marriage, or if either spouse has children from a previous relationship, an ANC is essential.
Without an ANC, your new spouse automatically acquires a 50% share in your joint estate. This can complicate inheritance planning for your existing children and may conflict with commitments made in a prior divorce settlement or existing will.
An ANC — particularly one without accrual — allows you to keep your estates entirely separate. This ensures that your existing assets, and any provision you have made for your children from a previous relationship, are preserved exactly as you intend. Each spouse can structure their will independently, without the complications of a joint estate.
For blended families, an ANC with carefully drafted succession clauses (a pactum successorium) can ensure the surviving spouse inherits appropriately while still protecting the interests of children from previous relationships.
In a marriage in community of property, South African law requires spousal consent for a range of important transactions. You cannot sell your house, take out a second bond, sign a suretyship or enter into a credit agreement above a prescribed value without your spouse's written consent.
This may seem like a minor inconvenience, but in practice it creates real problems. If your spouse is unavailable, uncooperative or abroad, you may be unable to complete time-sensitive transactions. If your marriage is under strain, the consent requirement can be weaponised to block legitimate financial decisions.
With an ANC, each spouse manages their own estate independently. No spousal consent is required for property transactions, credit agreements or business decisions — giving you full autonomy and flexibility.
An ANC can include a succession clause (known as a pactum successorium) — a provision that upon the death of one spouse, the surviving spouse will inherit the entire estate, or a specified portion, of the first-dying.
This is a powerful estate planning tool because, unlike a will, a succession clause in an ANC cannot be revoked unilaterally. The surviving spouse's inheritance is contractually guaranteed, regardless of what happens to the deceased's will. This provides certainty and protection that a will alone cannot offer.
The ANC can also include provisions establishing a mortis causa trust to manage assets on behalf of the surviving spouse or minor children.
An ANC is not selfish — it is protective of both parties. If you work in a high-risk profession, operate a business, or have volatile income, an ANC protects your spouse from the financial consequences of your risks.
Without an ANC, if your business is sued, if you face a professional negligence claim, or if your investments collapse, your spouse's home, savings and personal assets are all at risk. An ANC ensures that your spouse's estate remains separate and secure, regardless of what happens to yours.
Signing an ANC is an act of love and responsibility — not a sign of distrust.
If you marry without an ANC and later realise you need one, you will have to apply for a postnuptial contract. This requires a High Court application, which is significantly more expensive and time-consuming than registering an ANC before the wedding.
You will need to demonstrate to the court that no creditors will be prejudiced by the change. The entire process involves legal fees, court costs, the publication of a notice to creditors, and can take several months. The cost of a postnuptial contract application often runs into tens of thousands of rands.
By contrast, an ANC registered before the marriage is a straightforward process handled by your Notary Public, typically within a few days, at a fraction of the cost.
An ANC removes ambiguity. It is a clear, written record of your agreed financial arrangements — what belongs to whom, how assets will be shared (or not), what happens upon death or divorce, and how specific assets are treated.
Without an ANC, the law imposes a default regime (community of property) that may not suit your circumstances at all. With an ANC, you and your spouse are in control. You choose the framework that works for your relationship, your assets and your plans.
This certainty benefits not only the spouses but also their creditors, business partners, insurers and financial advisors — all of whom need to know the matrimonial property regime when making decisions that affect the couple.
At Louwrens Koen Attorneys, an antenuptial contract costs R1,950 all-inclusive. This covers drafting, notarial execution and registration at the Deeds Office. There are no hidden costs.
Consider what that R1,950 protects you against:A postnuptial contract to fix the problem later costs tens of thousands of rands in legal and court fees. A divorce involving a joint estate is significantly more expensive and contentious than one involving separate estates.
A single insolvency event without an ANC can destroy both spouses' financial lives.An ANC is, quite simply, one of the most cost-effective legal instruments available in South Africa.
"An ANC means we don't trust each other." This is the single biggest myth. An ANC is a financial planning tool — just like a will, an insurance policy or a business partnership agreement. Trust and good planning are not mutually exclusive. In fact, discussing your financial expectations openly before marriage is a sign of a healthy, mature relationship.
"An ANC means we're planning for divorce." An ANC operates during your marriage, not only on divorce. It protects you from debt, insolvency, and creditor claims throughout the marriage. It enables tax-efficient donations and estate planning. Divorce is only one of many scenarios in which an ANC serves its purpose.
"We don't have assets, so we don't need one." An ANC is about future protection, not just present assets. You may not have significant wealth today, but over a 20- or 30-year marriage you will accumulate property, investments, retirement savings and perhaps a business. The ANC protects the wealth you are going to build — and protects you from debt your spouse may incur along the way.
"We can always do one later." No, you cannot — at least not easily. Once you are married without an ANC, the only way to change your matrimonial property regime is through a postnuptial contract, which requires a High Court application and is far more expensive and complicated. It is always better — and cheaper — to sign an ANC before the wedding.
"An ANC means 'what's mine is mine and what's yours is yours.'" Not if you choose the accrual system. With accrual, you share the wealth built during the marriage while keeping separate estates. It provides fairness and protection simultaneously — the best of both worlds.
If you marry without signing an antenuptial contract, South African law automatically classifies your marriage as in community of property. The consequences are immediate and far-reaching:
All pre-marital assets and liabilities of both spouses are merged into one joint estate. Everything acquired during the marriage — income, property, investments — belongs to the joint estate.
All debts incurred by either spouse become joint debts. Neither spouse can sell immovable property, sign suretyship or enter credit agreements without the other's written consent.
If one spouse is sequestrated, the entire joint estate is insolvent — including the other spouse's assets. Both spouses are jointly liable to all creditors, regardless of who incurred the debt.
This default position is particularly dangerous for couples where one spouse runs a business, works in a high-risk profession, or brings significant pre-marital debt into the marriage.
Registering an antenuptial contract is a straightforward process:
Step 1: Apply online at www.antenuptialcontracts.co.za/apply or contact our office.
Step 2: We discuss your circumstances and recommend the appropriate matrimonial property regime (with accrual, without accrual, or customised).
Step 3: We draft the contract. Standard contracts are typically ready within 24 to 48 hours.
Step 4: Both parties sign the contract before our Notary Public in the presence of two witnesses. If one party cannot attend in person, they can sign via a power of attorney.
Step 5: Our Notary issues a certificate for your marriage officer, allowing your wedding to proceed immediately.
Step 6: We register the contract at the Deeds Office within the prescribed period. You will be notified once the original is returned.The entire process can be completed in as little as one day — even on the morning of your wedding.
We have drafted and registered thousands of antenuptial contracts over more than 15 years. Our Notary Public is on-site and our offices are in close proximity to the Pretoria Deeds Office — meaning fast registration and turnaround .
We serve clients nationwide through our secure online application process and power of attorney system, so you do not need to be in Pretoria to use our services.
Our all-inclusive fee of R1,950 covers everything: drafting, notarial execution and Deeds Office registration. No hidden costs. No surprises.
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.
