Let’s delve deeper and examine why it is beneficial for couples who intend marrying to enter into an Antenuptial Contract – whether it be with or without the accrual system.

Financial Protection and Clarity

An antenuptial contract (ANC) allows couples to decide how their assets and liabilities will be managed during the marriage. For example, if one spouse owns a business, an antenuptial contract can specify that the business remains their separate property. This ensures that the other spouse is not liable for any debts incurred by the business, which would be the case were they to marry in community of property.

Another scenario could involve one spouse bringing significant debt into the marriage. Without an antenuptial contract, this debt becomes a joint responsibility. With an ANC, the debt remains the responsibility of the individual who incurred it, protecting the other spouse from potential financial strain.

Building a Strong Foundation

By setting clear financial boundaries and expectations, couples can build a strong foundation for their marriage. Open discussions about finances before marriage can lead to better financial planning and management during the marriage. This proactive approach helps in mitigating potential conflicts and misunderstandings.

Consider a couple where one partner expects to receive a significant inheritance. An antenuptial contract can outline that this inheritance will remain separate property. This clarity prevents any future disputes over the ownership of the inheritance, ensuring that both partners are on the same page.

Avoiding the Pitfalls of Community Property

Marrying in community of property means that all assets and liabilities are shared equally between spouses. While this might seem equitable, it can lead to complications. For instance, if one spouse has substantial debt, the other spouse is equally responsible for it. This can affect the couple’s overall financial stability. Certain legal acts require that the spouses jointly sign or perform, which may pose a hinderance if one of the spouses is unavailable or refuses to sign.

An antenuptial contract, either with or without accrual, allows couples to avoid these pitfalls. With an accrual system, both partners share in the growth of their combined estates during the marriage, but their individual pre-marital assets and liabilities remain separate. This arrangement balances financial independence with shared growth, providing a fair and equitable approach.

Tailoring Financial Arrangements

Every couple’s financial situation is unique, and an antenuptial contract can be tailored to meet specific needs. For instance, if both partners have substantial personal assets they wish to protect, a contract without accrual might be ideal. On the other hand, if they wish to share the wealth generated during the marriage while protecting their pre-marital assets, a contract with accrual would be suitable.

Examples of Antenuptial Contracts in Action

ANC: without accrual

Let’s consider a couple, Sarah and John. Sarah owns a successful art gallery, while John is a freelance writer with fluctuating income. They decide to marry and choose to sign an antenuptial contract without accrual. This decision ensures that Sarah’s gallery remains her property, and John’s income remains his. Both are protected from each other’s creditors, and their financial independence is maintained.

ANC: with accrual

What is the accrual system and how does it work:

During the marriage, spouses are fully independent and there is a complete separation of assets and liabilities. It is only on dissolution of the marriage (either by death or divorce), that the assets accumulated (i.e. gains) by the parties during the marriage are shared between them. Property (assets) acquired before the marriage, is not shared if the parties provide commencement values in their antenuptial contract. A commencement value essentially sets out what each party is walking into the marriage with, which becomes applicable at time of dissolution of the marriage.

The “accrual” of the estate of a spouse is the growth which the estate of such spouse shows during the subsistence of the marriage (i.e. the difference between the net value of that estate at commencement of the marriage [in other words the net commencement values], properly escalated by CPI to make provision for inflation, and its net value upon dissolution of marriage).


By way of example, Michael and Lisa decide to marry with an antenuptial contract with accrual. Michael is a doctor, and Lisa is an entrepreneur.

Their starting values are captured as follows in the ANC:

Commencement value of Michael: R 500 000 (comprising of a motor vehicle and savings)

Commencement value of Lisa: R1 000 000 (comprising of an interest in a company)


Parties are also able to completely exclude an asset (this means that it is not ever taken into account when determining their accrual nor does it form part of their commencement values, it is effectively ‘ taken off the table’ entirely).

In our above example, Lisa didn’t have any assets that she wanted to exclude, but Michael did. Michael excluded certain immoveable property that he owned. This means that the immoveable properties or any asset acquired by Michael by virtue of his possession (or former possession thereof) of the properties shall never be taken into account as part of his estate at the conclusion or dissolution of the marriage. For example, he could sell the properties and use the proceeds to invest in the stock market (whatever he does with the excluded asset and any further dealings with that asset will not form part of his estate).

The commencement values become applicable when calculating the accrual of each spouse, on dissolution of the marriage.

Values of Michael and Lisa’s estates on dissolution of their marriage:

Michael: R2 000 000 (equity)

Lisa: R2 000 000 (equity)

The spouse whose estate shows no accrual or a smaller accrual than the estate of the other spouse, has a claim against the spouse whose estate shows the greater increase, for half the difference between the respective accruals. This is essentially the way of ensuring that both parties leave the marriage on equal footing (i.e. by sharing that which was accumulated during the marriage).

So, in the above example, the Michael’s accrual is R1 500 000 (i.e. R2 000 000 minus R500 000). Lisa’s accrual is R1 000 000 (i.e. R2 000 000.00 minus R1 000 000.00).

Michael’s estate shows the greater accrual (because his estate increased more during the marriage than Lisa’s estate), and thus Lisa has an accrual claim against Michael for R250 000, being half the difference between the accrual of their respective estates (R 1 500 000 – R1 000 000 = R500 000, divided by 2 = R250 000). This allows the parties to walk away from the marriage having shared the assets which were accumulated by them during the marriage relationship.

Assets that are automatically excluded (unless agreed otherwise by the spouses) from the accrual calculation at dissolution of the marriage are as follows:

  1. Any damages a spouse receives for non-patrimonial loss (i.e. non-financial harm, such as pain and suffering, injury to one’s personality etc.);
  2. Any assets specifically and expressly excluded by the spouses themselves in the ANC (and any other asset which is acquired by virtue of the possession or former possession of the first-mentioned asset);
  3. Inheritance, legacies and donations received from 3rd parties; and
  4. Donations between spouses.


Things to note regarding the accrual claim:

  1. The accrual of the estate of a deceased spouse is determined before effect is given to any testamentary disposition or succession in terms of the law of intestate succession.
  2. The right of a spouse to share in the accrual of the other spouse during the subsistence of the marriage is not transferrable or liable to attachment and does not form part of the insolvent estate of a spouse.


The Legal Process of Drafting and Registering an Antenuptial Contract

The process of drafting and registering an antenuptial contract is relatively straightforward but must be completed before the marriage. Couples need to consult a notary who will draft the contract according to their specific requirements. Both partners must sign the contract in the presence of the notary, who will then register it with the Deeds Office (becomeing a public document). This registration is crucial as it makes the contract legally binding against not only the parties themselves, but also third parties.

Failure to register the contract within the specified period means the marriage defaults to being in community of property. Therefore, timely consultation with a notary is essential.

Final Thoughts

Understanding the significance of an antenuptial contract and its implications can significantly impact the financial well-being of a marriage. It provides clarity, protection, and peace of mind, allowing couples to focus on building a harmonious and prosperous life together. Whether opting for a contract with or without accrual, the key is to ensure that both parties are well-informed and agree on the financial terms that best suit their needs.