How Do I Start the Process of Creating an Antenuptial Contract?

Creating an antenuptial contract (ANC) in South Africa starts with selecting the matrimonial property regime you want — out of community of property, with or without the accrual system — then instructing a Notary Public to draft and execute the contract before the marriage, and finally registering the executed contract at the Deeds Office within three months after the marriage under the Matrimonial Property Act 88 of 1984. The drafting and execution phase typically takes one to three weeks from instruction to a signed contract, after which the post-marriage deeds registration adds another two to four weeks before the registered copy is returned. Couples who marry without an ANC — or who fail to register one within the three-month window — default to marriage in community of property, meaning all assets and liabilities owned at the date of marriage and everything acquired during the marriage are pooled into a single joint estate.

What an Antenuptial Contract Is (and Why Couples Sign One)

An antenuptial contract is a notarised contract signed before marriage that sets out the matrimonial property regime the marriage will operate under. It is the legal mechanism that lets a couple opt out of the default regime of marriage in community of property under the Matrimonial Property Act 88 of 1984.

Three regimes are available to a couple who marries after 1 November 1984:

• Marriage in community of property (the default if no ANC is signed)
• Marriage out of community of property without accrual
• Marriage out of community of property with accrual

Couples typically choose an ANC to protect assets brought into the marriage, ring-fence an inheritance or family business, separate liability for debts, and (under the accrual system) share only the growth in each spouse’s estate over the marriage rather than the entire estate.

Choosing Your Matrimonial Property Regime

Regime	What it means	Typical reason couples choose it
In community of property (default — no ANC needed)	All assets and liabilities at date of marriage and all acquired during marriage merge into one joint estate; each spouse owns a half-share	Couples who want full financial pooling and have no pre-existing concerns about each other’s liabilities
Out of community of property without accrual	Each spouse keeps their own estate entirely separate, both before and during the marriage, and there is no sharing on divorce or death	Couples with very different estates, business owners, or those who want complete financial independence
Out of community of property with accrual	Each spouse retains their own estate, but on dissolution of the marriage (divorce or death) the spouse whose estate has grown less is entitled to a 50% share of the difference in growth	The most common ANC choice in practice — combines separation during the marriage with a fair sharing mechanism on dissolution

“Accrual” is the net growth in each spouse’s estate from the date of marriage to the date of dissolution. The starting values are normally declared in the ANC itself — these are called the “commencement values.” Section 4 of the Matrimonial Property Act expressly preserves the parties’ freedom to choose any of the three regimes by way of an antenuptial contract, subject only to the formality requirements.

Step-by-Step: How to Start the Process

1. Decide on the regime together — work out whether you want out of community of property with or without accrual (or, rarely, want to confirm the default in-community regime). This decision drives every subsequent step.
2. Engage a Notary Public — ANCs are not drafted by a normal attorney; they must be prepared and attested by a Notary Public. Choosing a multi-specialist firm that has a Notary on staff, such as Burger Huyser Attorneys, lets the drafting and execution happen inside the same firm rather than being referred out.
3. Provide the Notary with your personal and financial details — full names, identity numbers, marital status, occupation, residential addresses, and the proposed commencement values for each spouse’s estate (relevant for the accrual calculation if accrual is chosen).
4. Have the ANC drafted — the Notary prepares the contract in the prescribed form, reflecting the chosen regime, the commencement values, and any specific clauses (for example, a clause excluding a particular asset from the accrual calculation under section 2(2) of the Matrimonial Property Act).
5. Sign the ANC before the marriage, in the presence of the Notary and two competent witnesses — this is the formality that makes it legally effective. Signing after the marriage is not an ANC and cannot be registered as one. Both spouses must sign the same document.
6. Get married — the marriage can take place any time after the ANC has been signed, and the marriage officer must be satisfied that no legal impediment exists. The ANC does not need to be presented to the marriage officer.
7. Return to the Notary within three months of the marriage date — the Notary lodges the executed ANC at the Deeds Office for registration in terms of section 86 of the Deeds Registries Act 47 of 1937, together with a certified copy of the marriage certificate.
8. Receive the registered ANC from the Deeds Office — typically two to four weeks after lodgement, this is the document that is binding against third parties and conclusively proves the matrimonial property regime.

The Notary’s Role: What They Actually Do

The Notary Public carries the entire ANC process from instruction to registration. Their tasks include:

• Drafting the ANC in the prescribed notarial form, ensuring the contract complies with the Matrimonial Property Act and the notarial practice requirements
• Confirming the identity of both parties, verifying that each party is competent to marry and is not already married, and confirming there is no prohibition on the parties entering into the contract
• Administering the signing in their presence, with two competent witnesses, and certifying the execution
• Lodging the executed contract at the relevant Deeds Office (within the three-month post-marriage window) and obtaining the registered copy for the spouses

Many ANCs are now executed digitally through the e-Deeds portal, but the underlying formality — signature before the Notary and two witnesses — is unchanged.

Deeds Office Registration: The Three-Month Rule and What Happens If You Miss It

Section 86 of the Deeds Registries Act 47 of 1937 requires an ANC to be lodged for registration within three months of the date of marriage. Late registration is not automatically fatal: a Notary can apply to the Registrar of Deeds for condonation of the late lodgement under section 86(2), but the Registrar’s discretion is exercised narrowly and a late ANC may be rejected.

The Deeds Office will not register an ANC that is:

• Lodged before the date of marriage
• Not properly witnessed
• Missing the prescribed notarial certificates

Failure to register at all means the contract is valid between the spouses personally, but it is not binding on third parties (such as creditors of one spouse) and — in practice — the marriage is treated as in community of property for purposes of dealings with third parties.

Costs, Timelines, and What to Bring to the Notary

Item	Detail
Drafting and execution fees	Vary based on whether the contract is straightforward or requires additional clauses (excluded assets, accrual-specific provisions, foreign-property declarations); a basic two-page contract is at the lower end, while a contract with detailed commencement values and bespoke clauses costs more. Fees are quoted per file after review.
Deeds Office fees	Prescribed by regulation and set per lodgement; they are a separate line item from the Notary’s professional fee.
Total time from instruction to registered copy	Typically one to three weeks for drafting and execution, plus two to four weeks for the post-marriage Deeds Office registration — meaning the full process, if started well, runs four to seven weeks end-to-end.
Documents to bring to the Notary	Both spouses’ identity documents, copies of the marriage certificate (after the wedding), details of any assets to be declared as commencement values, and any prior ANC or divorce orders if either party has been previously married.

Common Mistakes and Pitfalls

• Signing the ANC after the marriage — a post-nuptial contract is not an ANC and cannot be lodged at the Deeds Office as one.
• Witnesses who are not competent (minors, or parties to the contract themselves) — the witnessing requirement is strictly applied and a defective attestation can invalidate the contract.
• Failing to declare accurate commencement values — under the accrual system the commencement values are the baseline for the accrual calculation on dissolution, and an undisclosed asset at commencement can create a dispute later.
• Lodging late and assuming condonation is automatic — it is not; the three-month window exists for a reason.
• Using a non-notary drafter — only a Notary can prepare and attest an ANC; an ANC drafted by a non-notary and merely witnessed by a Notary is procedurally defective.

Burger Huyser Attorneys’ family-law and notarial teams handle antenuptial contracts as a routine part of the firm’s wider family-law practice, with a Notary on staff who can spot and prevent these pitfalls before the contract is signed.

If you are planning to marry and want an antenuptial contract drafted, signed, and registered properly, contact Burger Huyser Attorneys’ family-law and notarial team on 011 888 0246 (after-hours 061 516 6878) or visit the head office at 49 First Avenue, Linden, Randburg, 2195. Because the firm has a Notary on staff, drafting, witnessing, and Deeds Office lodgement are handled end-to-end inside one firm, and the same team can advise on adjacent estate-planning questions (wills, trusts, accrual commencement values) if your situation is more involved than a straightforward contract. The firm carries a 4.8/5 average across 250+ Google reviews (Trustindex verified “Top Rated Law Firm in South Africa”) and has been named Best Family Law Firm 2024 (Lawyers Monthly Legal Awards) and Family Law Firm of the Year 2024 (MEA Business Awards). Couples anywhere in Gauteng can also reach the firm’s branch offices in Sandton, Roodepoort, Bedfordview, Alberton, Midrand, Centurion, and Pretoria.

Frequently Asked Questions

How far in advance of the wedding should we start the ANC process?

Most couples start the antenuptial contract process four to six weeks before the wedding, which gives the Notary time to draft, allow the couple to review and correct commencement values, and book an execution appointment. The actual execution itself takes less than an hour; the lead time is mostly for the drafting and review cycle.

Can we change the regime later, for example move from with accrual to without accrual after a few years?

No. The matrimonial property regime is fixed at the date of marriage and cannot be changed during the marriage by mutual agreement. The only post-marriage conversion is from in community of property to out of community of property under section 21 of the Matrimonial Property Act, which requires a court order and both spouses’ consent — and that route is not available to couples who already married out of community of property.

What happens if we sign the ANC but forget to register it at the Deeds Office?

The contract remains valid between the spouses personally, but it is not binding on third parties. In practice, this means a creditor of one spouse can treat the marriage as in community of property for purposes of attaching assets, and the spouses may face difficulties proving the regime in later dealings. Condonation of late registration is possible but discretionary and not guaranteed.

Do we need an attorney as well, or is the Notary enough?

A Notary is sufficient for the preparation, execution, and registration of the ANC itself. An attorney is useful alongside the Notary where the couple needs estate-planning advice (wills, trusts), tax advice, or where one or both spouses have complex assets — for example, a business interest, foreign property, or a contemplated inheritance — that need to be properly reflected in the contract or in adjacent planning.

Is an ANC still necessary if we are already engaged and trust each other completely?

Yes. An antenuptial contract does not reflect a lack of trust — it reflects a conscious choice about how the marriage will operate financially, and it protects both spouses against each other’s pre-existing and future creditors. It is also the only mechanism that lets the spouses opt out of the default in-community regime, and the decision is irrevocable once the marriage has taken place.

How long does the whole process actually take, end to end?

From the first meeting with the Notary to a signed ANC is typically one to three weeks, depending on how quickly the couple can provide their personal and financial details and review the draft. After the wedding, the Deeds Office registration adds another two to four weeks. Most couples hold their registered ANC in hand within five to seven weeks of starting the process.