Antenuptial Contracts: What Every Couple Should Settle Before the Wedding

Few documents signed in a lifetime have consequences as far-reaching as an antenuptial contract — and few are so often left to the last minute. The contract you sign (or fail to sign) before your wedding determines who owns what during the marriage, who is exposed to whose creditors, and how the estate is divided on divorce or death. As notaries practising in Pretoria, we prepare and register antenuptial contracts regularly, and the same questions come up every time. Here is what engaged couples need to know.

No contract means marriage in community of property

If you marry without an antenuptial contract, South African law automatically applies the default regime: marriage in community of property. Your assets and your spouse's assets — including everything each of you owned before the wedding — merge into a single joint estate, and so do your debts. Certain major transactions require your spouse's consent, and if one spouse's business fails, the joint estate, including the family home, is exposed to creditors. If one spouse is sequestrated, both are. Community of property suits some couples, but it should be a deliberate choice, not an accident of missed paperwork.

The three matrimonial property systems

• In community of property. The default. One joint estate, shared equally, with shared exposure to debt.
• Out of community of property with accrual. The most popular choice for modern marriages. Each spouse keeps and controls their own estate during the marriage, but when the marriage ends, the spouse whose estate grew less shares in the growth of the other's. What you bring into the marriage stays yours; what you build together is shared.
• Out of community of property excluding accrual. Complete separation. Each spouse keeps their own estate during and after the marriage, with no sharing of growth. This offers maximum independence but can leave a spouse who sacrificed a career for the household with little to show for it.

The accrual system was introduced by the Matrimonial Property Act 88 of 1984 and applies automatically to marriages out of community of property unless the antenuptial contract expressly excludes it. In an accrual marriage, each spouse's starting (commencement) value is recorded or declared, and at dissolution the smaller accrual claims half the difference between the two estates' growth. Inheritances, legacies and donations received during the marriage generally fall outside the accrual unless the couple agrees otherwise — and the contract can also exclude specific assets, such as a business or family farm.

The notary and the Deeds Office: timelines that matter

An antenuptial contract is not an ordinary agreement. To be valid against third parties it must comply with section 87 of the Deeds Registries Act 47 of 1937:

1. It must be executed before a notary public — a specially admitted attorney — and it must be signed before the marriage is concluded.
2. It must then be registered in a Deeds Registry within three months of the date of execution.

The notary attests the contract, records it in a protocol and attends to registration. A contract that was properly executed but never registered remains binding between the spouses themselves, but it cannot be enforced against third parties — meaning creditors may treat the couple as married in community of property. Registration is not a formality to skip.

Timing is the trap. The contract must be signed before the wedding ceremony, and the marriage officer will typically ask for proof of it. Couples who contact a notary in the week of the wedding put themselves under avoidable pressure; those who only think of it afterwards face a far more expensive fix. Our notarial services include drafting, executing and registering antenuptial contracts, and we recommend starting the process at least a month before the wedding.

Married without one? Your options after the fact

All is not necessarily lost if the wedding has come and gone.

• Late registration or postnuptial execution under the Deeds Registries Act. Where a contract was signed in time but not registered within three months, or where the couple agreed on their property regime before the marriage but never executed a notarial contract, section 88 of the Deeds Registries Act allows a court to authorise postnuptial execution or late registration of the contract — provided the terms were genuinely agreed before the marriage.
• Changing the matrimonial property system under section 21 of the Matrimonial Property Act 88 of 1984. Spouses who simply married in community of property may jointly apply to the High Court for leave to change their regime. The court must be satisfied that there are sound reasons for the change, that sufficient notice has been given to all creditors of both spouses, and that no other person will be prejudiced. The application involves notice to the Registrar of Deeds, publication and a properly motivated affidavit disclosing the couple's assets and liabilities.

Both routes are court applications: possible, but slower and considerably more expensive than signing the right contract before the wedding.

The practical process, step by step

1. Consult early. Meet the notary well before the wedding to discuss which system suits your circumstances, careers and existing assets.
2. Disclose and decide. If you choose accrual, decide on commencement values and any assets to exclude. Vague or inconsistent exclusion clauses are a common source of divorce litigation years later.
3. Sign before the notary. Both parties sign the contract in the notary's presence before the marriage. If one party cannot attend, signing by power of attorney can be arranged.
4. Registration. The notary lodges the contract at the Deeds Office within the three-month window and provides you with the registered contract for safekeeping.
5. Align your estate plan. Marriage changes your estate; your wills should change with it. We routinely prepare new wills alongside antenuptial contracts as part of our estate planning services.

Choosing well

There is no single right answer. Community of property offers simplicity and full sharing; accrual balances independence with fairness; complete separation protects entrepreneurs and second marriages where children's inheritances must be ring-fenced. What matters is that the choice is informed, documented and validly registered — because once the ring is on, changing course requires a High Court application. If you are getting married, contact us in good time and we will guide you through it.