Antenuptial Contracts in South Africa: Drafting, Notarisation and Registration

An antenuptial contract in South Africa is a notarial agreement executed before marriage to place the marriage out of community of property, either with or without the accrual system. Section 87 of the Deeds Registries Act 47 of 1937 requires a contract executed in South Africa to be attested by a notary and registered in a deeds registry within three months after execution, unless a court allows an extended period. Burger Huyser Attorneys handles advice, tailored drafting, notarial execution and Deeds Office lodgement through its Family Law and notarial practices.

What an Antenuptial Contract Does in South African Law

If prospective spouses marry without a valid antenuptial contract, the ordinary default is a marriage in community of property. Their assets and liabilities generally form one joint estate, subject to any legally effective exclusions. An antenuptial contract replaces that default with separate estates and records whether accrual will apply.

Registration matters beyond the relationship between the spouses. Section 86 of the Deeds Registries Act provides that an unregistered antenuptial contract has no force or effect against a person who is not a party to it. Registration therefore gives creditors and other third parties formal notice of the chosen regime, while the contract also guides the consequences of divorce or death.

The Three Matrimonial Property Regimes Compared

Regime	Position during marriage	Position when marriage ends	Key consideration
In community of property	The spouses generally have one joint estate containing assets and liabilities.	The joint estate is divided or administered subject to applicable law and any valid order.	Debt and asset exposure is shared; this is the ordinary default without an antenuptial contract.
Out of community with accrual	Each spouse keeps a separate estate and financial independence.	The growth in the estates is compared at death or divorce; the spouse with the smaller accrual ordinarily claims half the difference.	Commencement values and exclusions must be recorded and supportable.
Out of community without accrual	Each spouse keeps a fully separate estate.	There is ordinarily no sharing of estate growth under the antenuptial contract.	Full separation may disadvantage a spouse who gives up earnings for care or family responsibilities.

With Accrual or Without Accrual: How to Make the Call

Accrual can balance independence during marriage with sharing of growth when the marriage ends. Without accrual may suit some second marriages, business owners or couples who deliberately require complete estate separation, but it should not be selected merely because one person owns more at the start.

Before deciding, identify each person’s debts, property, business interests, trust interests, likely inheritances and family responsibilities. Under section 5 of the Matrimonial Property Act, inheritances, legacies and donations are generally excluded from accrual unless the antenuptial contract or the donor or testator provides otherwise. Changing the chosen regime later normally requires a High Court process under section 21, so both parties should understand the long-term effect before signing.

What the Antenuptial Contract Itself Must Contain

The contract must identify both parties and state clearly that community of property and community of profit and loss are excluded. It must then either apply the accrual system or expressly exclude it. Tailored clauses may identify particular assets excluded from accrual and explain how replacement assets or proceeds will be treated.

Commencement values deserve separate attention. Section 6 permits a value to be declared in the antenuptial contract or in a signed, notarially attested statement made before the marriage or within six months afterwards. If a value is neither declared nor proved, it is deemed to be nil. Full disclosure and supporting schedules reduce the risk of a later dispute. Business, trust, insolvency and retirement-fund issues require individual advice rather than copied clauses.

The Drafting and Registration Process, Step by Step

1. Consult early. Confirm the intended regime, proposed exclusions and wedding date with Burger Huyser Attorneys.
2. Provide information. Supply identity documents, asset and liability schedules, and relevant business or trust details.
3. Review the draft. The Family Law team prepares tailored terms and explains their practical effect.
4. Execute before marriage. Both prospective spouses sign the contract in notarial form before an admitted notary, with the notary confirming the required originals, witnesses and copies.
5. Lodge for registration. The notarial contract is lodged in a deeds registry within the section 87 three-month period.
6. Confirm wedding records. Because registration may follow execution, ask the notary what proof of execution the marriage officer requires before the ceremony.
7. Keep the registered record. Retain confirmation and the registered copy with wills and other estate-planning documents.

When Couples Sign Too Late: The Postnuptial Route

A couple cannot create an ordinary antenuptial contract after the wedding by signing a private document. A change of matrimonial property system generally requires a joint High Court application under section 21 of the Matrimonial Property Act. The spouses must show sound reasons, give sufficient notice to creditors and establish that no other person will be prejudiced. The court may then authorise a notarial contract regulating the future system.

Section 88 of the Deeds Registries Act addresses the narrower situation in which intended spouses agreed terms before marriage but did not execute the notarial contract in time. Both routes require case-specific court approval and cost materially more than completing the antenuptial process before marriage.

What Affects Cost and Timeline

Burger Huyser Attorneys quotes each matter after reviewing its scope; no current firm fee is stated in the supplied reference, so an amount should not be assumed. Complexity, not merely document length, drives the work.

Stage or factor	Planning guidance
Drafting	Allow an indicative 5–10 working days after complete information is supplied; tailored exclusions may take longer.
Execution	Book around both parties’ availability and leave time before the wedding for advice and amendments.
Deeds Office processing	An indicative 7–14 working days after lodgement may apply, but processing times are not guaranteed.
Common delays	Missing asset information, changed instructions, business or trust complexity, and late booking.

What to Bring to Your First Consultation at Burger Huyser

• identity documents or clear copies for both parties;
• the wedding date or expected date window;
• a preliminary list of each party’s assets and liabilities;
• details of companies, partnerships, shareholdings and trust interests; and
• details of assets or categories proposed for exclusion.

Approximate figures can start the discussion, but final commencement values and material exclusions should be accurate and defensible.

Why a Notary-on-Staff Firm Matters for This Work

Section 87 requires notarial attestation, so advice, drafting, execution and lodgement must be coordinated. Burger Huyser Attorneys has notaries at Bedfordview and Pretoria and can take initial instructions through its broader Gauteng branch network. The firm can also review related wills and estate-planning documents so that an excluded asset is treated consistently across the couple’s arrangements. Either party remains free to obtain independent advice before signing, particularly where estates or bargaining positions differ materially.

When Burger Huyser Cannot Help on This Service

The standard antenuptial service is not the correct route for spouses who are already married and require a section 21 change; that is a separate High Court litigation instruction. The firm also should not finalise a contract while the parties disagree about the regime or one party does not understand its consequences. Informed agreement must come before execution.

Frequently Asked Questions

How long does it take to draft and register an antenuptial contract?

A straightforward matter may take about three to five weeks from complete instructions to registration. Allow approximately 5–10 working days for drafting and an indicative 7–14 working days for Deeds Office processing, but complexity, amendments and current processing times can change the schedule. The contract must be executed before marriage and lodged within the statutory period.

Do we both need separate lawyers?

Not in every matter. The notary must explain the contract and ensure that both parties understand the intended regime. Independent advice is prudent where one party has substantially greater assets, specific exclusions are proposed, interests conflict or either party wants separate advice before signing.

Can we marry before the antenuptial contract is registered at the Deeds Office?

Yes. The essential sequence is notarial execution before the marriage, followed by registration. Section 87 allows registration within three months after execution in South Africa, unless a court permits longer. Ask the notary what confirmation the marriage officer requires while registration is pending.

What is the difference between marriage with accrual and marriage without accrual?

With accrual, each spouse keeps a separate estate during marriage, but the growth in the estates is compared when the marriage ends and the spouse with the smaller accrual ordinarily claims half the difference. Without accrual, each estate and its growth remain separate, subject to the contract and applicable law.

We got married without signing an antenuptial contract first — what can we do?

You generally need a joint High Court application under section 21 of the Matrimonial Property Act to change the matrimonial property system. The court must be satisfied that there are sound reasons, creditors received sufficient notice and no other person will be prejudiced. It is a separate, more involved service.

How does an antenuptial contract interact with a will?

The antenuptial contract determines the matrimonial property regime and affects what falls into each spouse’s estate; a will directs how that estate is distributed on death. The documents should be reviewed together so that exclusions, ownership assumptions and estate-planning instructions do not conflict.

To have an antenuptial contract advised on, drafted, executed and lodged within the required period, contact Burger Huyser Attorneys on 011 888 0246, the Bedfordview branch on 011 201 7190, or the Pretoria branch on 012 471 5700. Bring identity documents, an initial asset-and-liability list, business or trust details and the wedding date. The firm holds a 4.8/5 average from 250+ Google reviews and received Best Family Law Firm 2024 in the Lawyers Monthly Legal Awards and Family Law Firm of the Year 2024 in the MEA Business Awards.