Why Your Antenuptial Contract May No Longer Protect Your Assets

An antenuptial contract (ANC) out of community of property without accrual still provides meaningful asset protection in South Africa, but it is no longer absolute. Following the Constitutional Court’s ruling on 10 October 2023 and the General (Family) Laws Amendment Bill B20-2025, courts now have the power to redistribute assets between spouses in these marriages where it would be just and equitable to do so. If your marriage falls into this category, your position has potentially changed.

That is not a small shift. For decades, couples signed ANCs specifically to keep their financial lives separate. Business owners used them to protect company assets, and stay-at-home spouses accepted them, often without fully understanding the trade-off. The assumption on both sides was the same: what’s mine stays mine, no matter what. That assumption no longer holds unconditionally.

What Changed, and When

South African family law has three marriage property regimes: in community of property, out of community of property with accrual, and out of community of property without accrual. The third option, governed by an ANC that excludes both community and accrual, was historically the strongest form of asset separation available.

Section 7(3) of the Divorce Act allowed courts to redistribute assets at divorce, but only for marriages concluded before the Matrimonial Property Act came into force on 1 November 1984. Anyone who married after that date with a no-accrual ANC was completely excluded from this remedy. The result was a two-tier system: spouses in older marriages had some protection, those in newer marriages had none.

The Constitutional Court Ruling of October 2023

On 10 October 2023, the Constitutional Court handed down judgment in the combined cases of EB (born S) v ER (born B) and Others; KG v Minister of Home Affairs and Others ([2023] ZACC 32). The Court found that the post-1984 exclusion amounted to unjustifiable and indirect discrimination on the grounds of gender, in violation of the Constitution.

The Court addressed the issues in these combined cases by doing three things simultaneously:

• Declared Section 7(3)(a) unconstitutional as it excluded post-1984 no-accrual marriages from the redistribution remedy.
• Declared the law unconstitutional for failing to provide a redistribution remedy when a marriage is dissolved by the death of a spouse.
• Read in a temporary amendment that immediately extended the remedy to these marriages—whether dissolved by divorce or death—pending Parliament’s permanent fix.

How Does This Ruling Affect Antenuptial Contracts in Practice?

An ANC out of community of property without accrual remains a valid and enforceable contract. It still governs how assets are held during the marriage. It still means that your spouse cannot claim half of your estate simply by virtue of being married to you. The accrual remedy, which would have entitled your spouse to share in the growth of your estate, still does not apply.

What has changed is that the ANC is no longer an absolute shield against any redistribution at all. Courts now have a discretionary power to order a transfer of assets where:

• One spouse contributed directly or indirectly to the other’s estate.
• The court finds it just and equitable to make an order.
• The parties have not reached their own agreement on division.

The distinction that matters: An ANC without accrual still prevents automatic sharing. It does not prevent a court from ordering a targeted redistribution where the evidence justifies it. These are two very different things.

A spouse with minimal involvement in the other’s financial life, who contributed little to the household and has their own independent career, is unlikely to succeed in a redistribution claim. The ANC will carry significant weight in those circumstances.

The risk is highest where one spouse made substantial sacrifices, financial or otherwise, that directly enabled the other to build wealth. That is where courts are most likely to intervene, regardless of what the ANC says.

For business owners specifically, a well-structured ANC, combined with a properly constituted business entity and clear documentation of the business’s independence from marital contributions, still provides substantial protection. So, although your business is not automatically at risk, if your spouse can demonstrate a meaningful contribution to the business’s growth, the court now has the power to order a remedy.

Get Sound Legal Guidance

If your marriage is out of community of property without accrual, your position is different today than it was two years ago, and most people don’t know it yet.

At Cawood Attorneys, we advise clients across South Africa on antenuptial contracts, divorce, and asset protection. Whether you want to understand your current exposure, review your ANC, or get urgent advice before a separation, we can help.

Book a consultation and get advice from qualified attorneys on what this law change means for your marriage.