Notarial Contracts
We provide expert advice regarding the different matrimonial property systems applicable in South Africa and attend to the specialised drafting and registration of both antenuptial and postnuptial contracts.
Book a ConsultationAn antenuptial contract must be:
Overview
An antenuptial contract, commonly referred to as an ANC or prenuptial agreement, is a legal contract that regulates the matrimonial property system applicable to a marriage.
In South Africa, the default matrimonial property regime is one of community of property and profit and loss. This means that unless the parties have entered into a valid antenuptial contract before the marriage, all assets and liabilities accumulated before and during the marriage form part of a single joint estate, shared equally between both spouses. Both parties are entitled to 50% of all assets and 50% liable for all debts.
An antenuptial contract is one of the most important legal documents a couple will ever sign. It provides financial clarity, protects individual assets and ensures that both parties enter the marriage with a clear understanding of their respective rights and obligations.
Main Purpose
To exclude the community of property and profit and loss, and to determine whether the accrual system will apply to the marriage.
Asset Protection
Protects individual assets acquired before and during the marriage from being absorbed into a joint estate.
Important Note
If a marriage is not subsequently concluded, the antenuptial contract has no force or effect.
Matrimonial Property
South African law recognises three matrimonial property regimes. Understanding the differences between them is essential before deciding which option is best suited to your circumstances. Our notarial team will guide you through each option and ensure that your antenuptial contract accurately reflects your intentions.
Option 1
South Africa's default — no ANC required
This regime applies automatically if no antenuptial contract is signed before marriage.
Option 2
Fully separate estates throughout
Best suited to couples who wish to keep their financial affairs entirely separate.
Option 3
The most equitable and widely recommended option
Widely regarded as the most equitable option for couples who each contribute to the marriage in different ways.
Legal Requirements
For an antenuptial contract to be legally valid and enforceable in South Africa, four key requirements must be met. The contract must be executed by the parties before the marriage is solemnised.
A court can authorise the postnuptial execution of a notarial contract having the effect of an antenuptial contract — valid and binding from the date of the marriage — if the terms were agreed between the parties before the marriage.
Common oversight: Failure to register the antenuptial contract within three months means it has no legal force or effect against third parties. Working with an experienced notary from the outset is essential.
Drafted by a Notary Public
The contract must be prepared and drafted by a qualified Notary Public — not a general attorney or conveyancer.
Executed before the marriage
Signed by the parties or their duly appointed representatives in the presence of the notary, and prior to the intended marriage.
Attested by the notary
The notary verifies the signatures of the parties by affixing his or her own signature and seal to the contract.
Registered within three months
The contract must be lodged and registered in the Deeds Office within three months of the date of execution. Failure to do so renders it unenforceable against third parties.
After Marriage
Unlike an antenuptial contract, a postnuptial contract cannot simply be executed before a notary. It requires a formal application to and an order from the High Court of South Africa before it can be executed and registered.
A postnuptial agreement can only be entered into once the court has ordered either a division of a joint estate in terms of section 20 of the Matrimonial Property Act, 1984, or has changed a matrimonial property system in terms of section 21 of the Matrimonial Property Act, 1984.
The process typically takes three to four months from start to finish, depending on the court roll.
Parties normally approach a court for an order to change their matrimonial property regime because of changing circumstances — for example, one spouse has started a business and both parties wish to protect the other from potential business-related liabilities.
An amended matrimonial property regime would therefore more accurately reflect their current situation and long-term intentions.
Key Difference
Planning to marry? An antenuptial contract is straightforward — drafting, notarial attestation and deeds office registration.
Already married? A postnuptial contract requires a formal High Court application, notice to creditors and a court order — considerably more involved and more expensive.
Joint Application
An application is drafted and filed with the High Court by both spouses jointly.
Creditor Notification
All creditors must be notified and given the opportunity to object to the proposed change in matrimonial property regime.
Public Advertisement
The application must be advertised in the Government Gazette and a local newspaper.
High Court Order
The High Court must be satisfied that good reasons exist, no prejudice will result, and that all creditors have been notified. If satisfied, it grants the order.
Execution & Registration
The postnuptial contract is executed before a Notary Public and registered in the deeds office within the period ordered by the court.
Why Us
Choosing the right notary for your antenuptial or postnuptial contracts is extremely important and can save you a lot of money. At Notary Services Cape Town, we are backed by the full resources and expertise of Hannes Gouws & Partners Inc.
Backed by a Full Law Firm
We are backed by the full resources and expertise of Hannes Gouws & Partners Inc. — a firm with over 35 years of legal experience.
Plain-Language Advice
We provide clear, plain-language advice on which matrimonial property system best suits your individual circumstances.
End-to-End Management
We manage the full process from initial consultation through to deeds office registration, ensuring nothing is overlooked.
No Surprises
Both parties are guided through the implications of their chosen regime before signing, so there are no surprises later.
Centrally Located
Our Cape Town office is in the CBD at One Thibault, corner of Long Street and Hans Strijdom Avenue — easily accessible for consultations and signings.
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Rated number one in South Africa on HelloPeter under Lawyers, Attorneys and Legal Services.
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021 100 6177Notary Email
capenotary@hannesgouws.co.zaOffice Address
Suite 12003, 12th Floor, One Thibault, cnr Long Street & Hans Strijdom Avenue, Cape Town
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