Navigating the legal landscape of marriage in South Africa can be complex. One critical aspect to consider is the antenuptial contract. Understanding its meaning, purpose, and implications is essential for couples planning to marry.

What is an Antenuptial Contract?

An antenuptial contract, often referred to in movies or other jurisdictions as a prenup, is a legally binding agreement entered into by two individuals before they get married. Its primary function is to set out the financial arrangements and property rights between the spouses. This contract ensures that the marriage operates outside the default legal framework of being married in community of property.

Why is an Antenuptial Contract Important?

In South Africa, without an antenuptial contract, marriages are automatically considered to be in community of property. This means that all assets and liabilities of both parties are combined into a single joint estate. While this arrangement has its benefits, it also comes with significant risks, particularly if one spouse incurs debt or declares insolvency. An antenuptial contract allows couples to avoid these risks by clearly defining the financial boundaries between them.

Types of Antenuptial Contracts

Out of Community of Property Without Accrual

This type of contract ensures that each spouse retains ownership of their separate estates, both before and during the marriage. There is no sharing of assets or liabilities, meaning that each person is solely responsible for their own financial matters. This arrangement is particularly beneficial for those who wish to maintain complete financial independence.


  • Complete financial independence.
  • Protection from each other’s creditors.
  • Simplifies financial management.


  • No sharing of assets acquired during the marriage.
  • The financially weaker spouse may not benefit from the other’s wealth.


Out of Community of Property With Accrual

In this arrangement, each spouse keeps their separate estate, but they share the wealth accumulated during the marriage (i.e. a spouse has a claim against the spouse whose estate grew the most on termination of the marriage, either on death or divorce). The accrual system ensures a fair distribution of assets in the event of divorce or death, balancing financial independence with shared growth.


  • Fair distribution of assets acquired during the marriage.
  • Protection from each other’s pre-marital debts.
  • Encourages joint financial growth.


  • Requires careful record-keeping and calculation.
  • The financially stronger spouse may feel at a disadvantage.

How to Register an Antenuptial Contract

To be valid, an antenuptial contract must be signed in the presence of a notary public before the couples marry (i.e. before the wedding date/ payment of labolo etc) and be registered with the Deeds Office within three months of signing. Failing to sign the contract in the presence of a notary before the marriage takes place, or failing to register the contract within the aforesaid period means that the marriage will automatically be considered in community of property.

Steps to Register

  1. Consult a Notary Public: A qualified attorney who specialises in antenuptial contracts. Only a Notary can execute an Antenuptial Contract.
  2. Notary drafts the Contract: Ensure it reflects the specific financial arrangements agreed upon by both parties.
  3. Sign the Contract: Both parties must sign the contract in the presence of the notary public. The notary will then issue a confirmatory letter to the parties, which must be given to their marriage officiant as proof that their marriage must be registered as ‘out of community of property’ at Home Affairs.
  4. Register the Contract: The notary public will submit the contract to the Deeds Office for registration.

Benefits of an Antenuptial Contract

Financial Clarity and Security

An antenuptial contract provides clear guidelines on the financial arrangements between spouses. This clarity helps prevent misunderstandings and disputes regarding asset ownership and financial responsibilities.

Protection from Debt

By keeping estates separate, an antenuptial contract protects each spouse from the other’s creditors. This is particularly important in cases where one spouse may incur significant debt during the marriage.

Fair Distribution of Assets

For couples opting for the accrual system, an antenuptial contract ensures a fair distribution of assets accumulated during the marriage. This arrangement recognises the contributions of both spouses, whether financial or otherwise.

Customised Financial Arrangements

Every couple’s financial situation is unique. An antenuptial contract allows couples to tailor their financial arrangements to suit their specific needs and circumstances.

Common Misconceptions About Antenuptial Contracts

Only for the Wealthy

One common misconception is that antenuptial contracts are only necessary for wealthy individuals. However, these contracts are beneficial for anyone who wants to ensure financial clarity and protection in their marriage.

Lack of Trust

Some believe that drafting an antenuptial contract indicates a lack of trust between partners. On the contrary, these contracts can strengthen a relationship by fostering open communication and setting clear expectations.

Complicated Process

While the process of drafting and registering an antenuptial contract involves legal formalities, it is relatively straightforward with the help of a qualified notary. The benefits far outweigh the initial effort required.

The Importance of Antenuptial Contracts in South Africa

Understanding the meaning and implications of an antenuptial contract is crucial for any couple planning to marry in South Africa. This contract serves as a protective measure, ensuring that both parties have a clear understanding of their financial rights and responsibilities. It helps avoid future disputes and provides a sense of security for both partners.