In the same way that we insure our cars without expecting to be involved in an accident, or keep fire extinguishers in our homes without intending to start a fire, couples enter into ante-nuptial contracts without anticipating the breakdown of their marriage. Marriage is both an emotional and a legal commitment, and in South Africa, the legal consequences of a marriage can have a significant impact on spouses, especially in the event of divorce or the death of one spouse. One effective way of regulating these consequences is by way of an ante-nuptial contract (hereinafter referred to as an “ANC”). Despite their practical value, ANCs are often avoided or misunderstood, largely due to the stigma attached to them. The question is frequently posed, “Why are we getting married if we are already planning for divorce?” While this question is understandable, it is misplaced. There are many misunderstandings surrounding the purpose of ANCs, which are not designed to undermine the institution of marriage, but rather to provide clarity, protection, and fairness, just in case. This article aims to explain what an ANC is, the legal framework that governs it, how it works in practice, and why it is an important consideration before getting married rather than a sign of mistrust.
What is an Ante-nuptial Contract?
An ANC is a written legal agreement entered into by two parties before they conclude marriage. Its primary purpose is to regulate the financial consequences of the marriage. In terms of South African law, couples who do not enter into an ANC before getting married are automatically married in community of property, as this is the default matrimonial property regime. A marriage in community of property results in the creation of a joint estate in which both spouses share equally in all assets and liabilities, whether accrued before or during the marriage. By concluding an ANC, spouses are able to avoid this default position and instead keep their estates separate, subject to the terms agreed upon in the contract. The Matrimonial Property Act 88 of 1984 is the statute that governs matrimonial property regimes in South Africa, this Act allows couples to decide the manner in which their finances will be regulated during the course of their marriage, the Matrimonial Property Act is of course the legal basis for ANCs as well.
What are the Types of Matrimonial Property Regimes Recognised in South Africa?
South African law recognises three types of matrimonial property regimes, all regulated by the Matrimonial Property Act. In community of property is the default position for married couples in South Africa, this is where the couple has not concluded an ANC or has failed to properly comply with the requirements to do so. Marriage in community of property means that through marriage, the couple has created a joint estate whereby they share assets and liabilities accrued before or during the marriage equally, essentially a “50-50” split. Out of community of property with accrual is the position where couples retain their separate estates, but they share the growth accumulated during the course of the marriage. Out of community of property without accrual means that the spouses’ estates are completely separate and there is no sharing whatsoever. Couples have the freedom to choose which matrimonial property regime best suits their personal and economic needs and interests. However it is imperative to note that failure by a couple to conclude an ANC means that the couple is automatically married in community of property, the default position as discussed above.
So…What is the Process of Concluding an Ante-nuptial Contract?
Before tying the knot, couples must have an honest and open conversation regarding the matrimonial property regime they wish to regulate their marriage. If the decision is to conclude an ANC, the following requirements must be complied with; first, the couple must consult with a notary public who is also a qualified attorney. This is so the notary may draft the contract, having taken into consideration all of the assets and liabilities of the spouses, ensuring that all the necessary information regarding each of their financial positions has been disclosed. Secondly, this contract must be signed by both of the parties before their wedding, as well as the notary. The notary must then register the ANC at the Deeds Office within the prescribed three-month period, in line with the Deeds Registries Act 47 of 1937.
Misunderstandings and Conclusions
There are many misconceptions surrounding ANCs that often cause hesitation amongst couples. Many people believe that ANCs are only necessary for the wealthy, or that they signal mistrust in the relationship. Others mistakenly believe that an ANC can be signed after the marriage has taken place. These assumptions are all incorrect and can have significant legal consequences. An ANC is relevant to a wide range of couples and must be properly drafted, executed, and registered properly in order to be legally binding and effective. Although it is possible to change a matrimonial property system after marriage, the process is complex and requires court approval. To conclude, an ANC is a valuable legal agreement that enables couples to enter marriage with clarity, fairness, and foresight. It does not mean that you do not trust your partner, nor does it mean you are undermining your union in any way, it should rather be seen as an exercise in responsible planning. Anyone considering marriage should seek professional legal advice to ensure that their chosen matrimonial property regime aligns with their financial goals and personal circumstances.
ABOUT THE AUTHOR
Reshoketsoe Reneilwe Modiba, known as Shoki, is an LLB graduate and an LLM candidate in Mercantile Law at the University of Pretoria, specialising in banking law, insolvency law and transnational business law.
She has experience as a content creator and marketing intern at the Department of Library Services at the University of Pretoria, where her responsibilities included creating engaging reels, static posts and stories to promote library services and communicate important information to students across various social media platforms.
Shoki has participated in several mentorship programmes, including being a mentee in the 2024 For Women in Law intake, where she attended all contact and online sessions and actively contributed in meetings with mentors and guest mentors, while also supporting fellow mentees. She is also a mentee in the 2025 South African Chapter of the International Association of Women Judges (SAC-IAWJ) programme, where she engaged in regular contact sessions, court observations, webinars and reflection sessions. Through these experiences, she developed skills in legal writing, research and drafting, while gaining insight into court hierarchy, legal ethics and career development.
Outside of her academic pursuits, Shoki is a creative at heart and enjoys writing poetry, short stories and drawing.