Your Antenuptial Contract Might Not Be As Final As You Think

Antenuptial contracts ("ANCs") have long given South African couples a sense of security when defining how their assets are treated in marriage. Many couples, especially those with significant individual assets, choose to marry out of community of property and exclude accrual. This traditionally meant that each spouse’s estate remained entirely separate, both during the marriage and upon divorce.

However, on 10 October 2023, the Constitutional Court confirmed a landmark ruling that has changed this understanding. In the combined matters of EB v ER N.O. and Others and KG v Minister of Home Affairs and Others, the court declared Section 7(3)(a) of the Divorce Act 70 of 1979 unconstitutional. This section had previously prevented spouses in post-1984 marriages, who excluded accrual, from asking for a redistribution of assets at divorce or after the death of a spouse.

What the Court Decided

The Constitutional Court recognised that excluding post-1984 marriages from redistribution rights was unfair and perpetuated economic inequality, particularly affecting spouses who contributed to the marriage in non-financial ways, such as caring for children or managing the household. The court “read in” interim changes that are effective immediately while Parliament has 24 months (until October 2025) to formally amend the law so that:

1. asset redistribution now applies to all marriages out of community of property without accrual, regardless of when the marriage was concluded.

2. redistribution can also be claimed after the death of a spouse, provided the estate is not yet finalised.

   
   

This is a significant development, as it means that an ANC excluding accrual no longer completely shields assets if one spouse can show that they contributed to the growth of the other’s estate.

How Do the Property Regimes Work?

• In community of property

  All assets and debts are pooled into one joint estate, with each spouse owning an equal share.

• Out of community of property with accrual

  Each spouse retains ownership of their own estate, but any increase in wealth during the marriage is shared equally upon divorce or death.

• Out of community of property without accrual

  Each spouse’s estate remains entirely separate, with no sharing of assets. This was often viewed as final and binding, but the new ruling allows courts to intervene in the interest of fairness.

  
  

An Example: Suppose John owns a R2 million property when he marries Mary, who does not own significant assets.

• If they marry with accrual, and John’s estate grows to R4 million during the marriage while Mary’s remains at R200,000, Mary can claim a share of the R2.2 million combined growth.

• If they marry without accrual, Mary traditionally would receive nothing from John’s estate, even if she supported him by raising their children or helping manage the home. Under the new ruling, Mary may now approach the court for a redistribution of assets if it would be “just and equitable”.

  
  

Why This Matters

This Constitutional Court decision creates a pathway for fairer outcomes for spouses who previously had no legal protection, particularly women who have made indirect contributions over long marriages. It also means that couples who believed their ANC provided absolute protection of their estates may need to revisit their contracts and financial planning.

Bill in progress

The Government Gazette No. 52814 of 6 June 2025 confirms that the General (Family) Laws Amendment Bill, 2025 is set to be introduced to Parliament by Justice Minister. This Bill will formally update the Divorce Act 70 of 1979, the Matrimonial Property Act 88 of 1984, and the Mediation in Certain Divorce Matters Act 24 of 1987. These amendments follow the Constitutional Court’s 2023 ruling and will empower courts to redistribute assets in all marriages out of community of property without accrual, including those ending in death, and enhance the role of the Family Advocate. This legislative step confirms that the sweeping changes to divorce and property laws are no longer just court-driven but are being codified into law.

What You Should Do

If you are married out of community of property without accrual, or if you are an executor of an estate where this arrangement applies, it is important to understand these changes. The courts now have the power to consider redistribution, and preparing early can help you protect your interests.

Spence Attorneys can assist with reviewing your ANC, advising on redistribution claims, and planning for the potential impact of these legal developments.

Contact Spence Attorneys at info@spencelaw.co.za or visit www.spencelaw.co.za for expert advice on marriage contracts, divorce law, and estate planning.

Disclaimer: This article is provided for information purposes only and does not constitute legal advice. Please consult a qualified attorney for guidance specific to your situation.

Spence Attorneys- your Cape Town family lawyers and notary