Marriage is a union of love, trust, and shared aspirations – but it’s also a legally binding contract with significant financial consequences. In South Africa, an antenuptial agreement is an important step to ensure that both partners enter this union with clarity, protection, and peace of mind. Whether you’re blending families, building businesses, or safeguarding personal assets, understanding the legal framework matters.
In this article, we explain why an antenuptial agreement in South Africa is one of the most important decisions you can make before walking down the aisle, and how Benita Ardenbaum Attorneys can help you navigate this process with confidence.
What Is an Antenuptial Agreement?
An antenuptial agreement, commonly referred to as a “prenup”, is a legal contract signed before marriage that sets out how assets and liabilities will be handled during the marriage and in the event of divorce or death.
Without an antenuptial contract, South African law automatically considers the marriage to be “in community of property”, meaning all assets and debts are shared equally – regardless of when or by whom they were acquired.
By contrast, an antenuptial agreement allows couples to marry “out of community of property”, either with or without the accrual system. This legal distinction offers greater financial independence and asset protection.
Why You Might Need an Antenuptial Agreement in South Africa
There are several compelling reasons to consider an antenuptial contract before saying “I do”:
- Asset Protection: Keep your pre-marital assets separate and protect any future inheritance.
- Debt Separation: Avoid becoming liable for your partner’s debts accrued during or before marriage.
- Business Ownership: Safeguard your business from being split in a divorce.
- Family Security: Protect children’s inheritance rights from previous marriages or relationships.
- Clarity in Case of Divorce: Prevent lengthy, expensive disputes by agreeing upfront on financial arrangements.
Types of Antenuptial Contracts: With or Without Accrual
When opting to marry out of community of property, there are two choices:
With Accrual
Each partner keeps their own pre-marital assets, but any growth in wealth during the marriage is shared equally upon divorce or death. This is a balanced approach, especially if one spouse is expected to pause their career for family commitments.
Example: If Partner A starts with R1 million in assets and ends the marriage with R2 million, and Partner B starts with R500,000 and ends with R2 million, the growth (R1 million for A, R1.5 million for B) is added and divided equally.
Without Accrual
There is complete financial separation throughout the marriage. Each partner retains full ownership of their assets and is solely responsible for their own debts.
No Antenuptial Agreement
The marriage defaults to “in community of property”. All assets and debts are jointly owned, potentially exposing both partners to significant financial risk.
If you’re uncertain which option suits your lifestyle and goals, it’s best to seek legal advice from an experienced family law attorney before getting married.
How to Register an Antenuptial Contract in South Africa
To be legally valid in South Africa, the antenuptial agreement must be signed before the marriage takes place and registered within three months. The process involves:
- Consulting a Family Law Attorney: Work with a specialist like Benita Ardenbaum Attorneys for expert legal guidance.
- Drafting the Contract: Your attorney prepares a contract that aligns with your goals and complies with South African law.
- Notarial Signing: The agreement must be signed in front of a notary public.
- Deeds Office Registration: The contract must be lodged at a Deeds Office for official registration.
Failing to complete these steps can result in the marriage defaulting to “in community of property”, regardless of your intentions.
What Happens Without an Antenuptial Contract?
If no contract is signed, your marriage is automatically considered “in community of property”. While this regime may seem fair at first glance, it often leads to unintended consequences:
- Equal Sharing of Debt: If one partner becomes insolvent, creditors may seize joint assets.
- Loss of Financial Independence: All earnings and assets belong to the joint estate.
- Complications During Divorce: Dividing assets can be messy and contentious.
This is particularly risky for individuals who enter the marriage with substantial assets, own a business, or have dependents from previous relationships.
Why work with Benita Ardenbaum Attorneys?
At Benita Ardenbaum Attorneys, we understand that marriage is both an emotional and legal milestone. Our team of family law attorneys in Durban, Cape Town, and Johannesburg has decades of experience helping couples secure their futures through personalised antenuptial contracts.
We provide bespoke legal advice, ensure all documentation meets legal requirements, and manage the Deeds Office registration process efficiently from start to finish.
Our approach is rooted in compassion, discretion, and excellence, so you can focus on your relationship, knowing your legal affairs are secure.
Explore our full range of family and matrimonial law services to see how we can support you at every stage of your relationship journey.
Secure Your Future, Protect Your Relationship
Marriage should be built on mutual respect and shared values – not unforeseen financial risk. By signing an antenuptial agreement, you take an empowering step to protect your assets, your family, and your future.
Speak to our experienced team at Benita Ardenbaum Attorneys for legal advice before marriage and let us help you draft a prenup in South Africa that reflects your values and safeguards your future.
FAQs About Antenuptial Agreements
Can I sign an antenuptial agreement after marriage?
No. Antenuptial agreements must be signed and registered before the marriage takes place. Post-marital contracts require court approval, which is more complicated and costly.
What if my partner and I don’t agree on the terms?
A family law attorney can mediate discussions to ensure both parties feel comfortable and secure with the terms of the agreement.
Is an antenuptial agreement enforceable in court?
Yes. As long as the contract is properly executed and registered, it is fully enforceable under South African law.
What does “with accrual” mean in a prenup?
It means that the value of each spouse’s estate growth during the marriage is shared equally upon divorce or death.
Can we update the agreement later?
While the original antenuptial contract can’t be changed easily, you can enter into a postnuptial agreement with court approval or revise your estate planning through wills and trusts.
Let Benita Ardenbaum Attorneys help you start your marriage with clarity, confidence, and legal peace of mind.
