Antenuptial / Marriage Contracts

When getting married in South Africa, couples must choose a marital property regime. This choice affects how assets, debts, and finances will be managed during the marriage and in the event of divorce or death. There are three options available:

  1. In Community of Property
    • Both spouses’ estates merge into one joint estate.
    • Assets and debts are shared equally.
    • This is the default system if no contract is signed before marriage.
  2. Out of Community of Property with Accrual
    • Each spouse keeps their own estate during the marriage.
    • At divorce or death, the growth (accrual) of both estates will be determined and the party who’s estate showed the lessor growth, will be entitled to share equally in the growth of the party’s estate who showed the larger growth.
  3. Out of Community of Property without Accrual
    • Each spouse’s estate remains completely separate.
    • No sharing of assets or debts takes place during or after the marriage.

👉 An antenuptial contract (also known as a marriage contract) must be signed before the wedding. If no contract is signed, the marriage will automatically be in community of property.

Recent constitutional caselaw has emerged which will play a significant role in matters concerning Antenuptial Contracts (“ANCs”) and the dissolution of marriages. The first is the judgment of the Greyling matter delivered during 2023, and the second is the judgment in EB v ER matter handed down in 2024. For further detail please refer to the section on the webpage marked  “Insights & Updates”   where you will find the interesting articles on the latest judgements, trends and developments in family law.

Variation of Matrimonial Property Regime

Circumstances sometimes change, and couples may later decide that their chosen marital regime no longer suits their needs. For example:

  • They may wish to protect their estate or business assets.
  • They may have married under a system that had consequences they did not fully understand.

In such cases, spouses can apply to the High Court to vary their matrimonial property system. This process is regulated strictly by law and certain requirements must be met before the court will grant approval.

Our firm assists clients both in drafting antenuptial contracts before marriage and in applying for variations to existing property regimes.