It is well understood that a marriage not only solidifies a commitment that spouses make to one other but also creates a contractual relationship with proprietary consequences.

Every marriage automatically creates a legal financial framework and with the development of our legal system and our courts having to rule on the validity and consequences of marriages, it is important to understand the difference between an antenuptial contract (a contract concluded before the marriage) and a postnuptial contract (concluded after the marriage). This knowledge will benefit spouses as it will enable them to better decide on which procedure is most beneficial in their circumstances.

In South Africa, the marital regime that applies by default is a marriage in community of property, what this means in simple terms is that if no antenuptial contract is signed by the spouses intended to marry before the marriage, the marriage automatically falls under ‘in community of property’. The proprietary consequence of this is that the individual estate of partners which existed independently before the marriage, will now combine and merge both spouses’ assets and liabilities into a single shared estate, legally referred to as a joint estate.

What this will result in is that the one spouse will automatically inherit the debts and liabilities of the other spouse even if they were incurred before marriage, including business debts and tax liabilities, become the debts of both. Creditors can claim against the entire joint estate.

The only way to avoid this default is to conclude an ANC before the marriage takes place.

What is an antenuptial contract?

An antenuptial contract (ANC) is a formal notarial deed signed by both parties before the marriage ceremony. It must be executed before a notary public and registered at the Deeds Office within three months of signing. This does not require a court application.

An ANC allows couples to choose between two alternative marital regimes:

Out of community of property WITHOUT accrual.

• Estates remain fully separate at all times.
• No sharing of assets at divorce or death
• Complete protection from each other’s debts.
• Suits parties who prefer full independence.

Out of community OF property with accrual.

• Estates stay separate during the marriage.
• At dissolution, the lesser-accruing spouse claims half the difference.
• Widely regarded as the most equitable option.
• Specific assets (e.g. inheritances, a family business) can be excluded.

What is a postnuptial contract?

A postnuptial contract changes the matrimonial property regime after the marriage has already taken place. This is far more complex than concluding an ANC and is governed by section 21 of the Matrimonial Property Act 88 of 1984.

Unlike an ANC, a postnuptial contract cannot simply be signed before a notary. Spouses must first bring a High Court application, and the court will only grant leave if satisfied that:

• There are sound reasons for the proposed change.
• All creditors of both spouses have been given notice (typically published in two newspapers and the Government Gazette).
• No creditor or third party will be prejudiced by the change.

Only once the court grants its order may the spouses proceed before a notary to execute and register the postnuptial contract. The court retains a discretion to refuse, and creditor objections can defeat the application entirely.

“The difference between an ANC and a postnuptial contract is not merely procedural, it is the difference between a straightforward notarial deed and a contested High Court application.”

Side-by-side comparison

	ANTENUPTIAL CONTRACT	POSTNUPTIAL CONTRACT
Timing	Before the marriage ceremony	After marriage — any point
Court required	No	Yes — High Court (s21)
Creditor notice	Not required	Mandatory — Gazette + newspapers
Cost	Notary + Deeds Office fees	Attorney + notary + Deed Office fees + publication
Certainty	High — if formalities are met	Lower — court has a discretion
Flexibility	Broad — parties have wide autonomy	Constrained by court scrutiny

Key takeaway: do not leave it to the default.

The most common and costly mistake in South African matrimonial property law is failing to conclude an ANC before the wedding and assuming the matter can be addressed afterwards. A postnuptial change of regime is not impossible, but it is substantially more expensive, time-consuming, and legally uncertain than planning ahead.

Couples with business interests, significant assets, debts, or children from prior relationships have the most to gain from careful pre-marital planning, but the reality is that almost any couple benefits from making a conscious, informed choice about their matrimonial property regime rather than accepting a legal default they may not have intended.

This article is intended for education only and does not constitute legal advice. Matrimonial property law is complex and every situation is different. Please consult a qualified attorney or notary before making any decisions. Governed by the Matrimonial Property Act 88 of 1984 and the Deeds Registries Act 47 of 1937.