Recently, the South African parliamentary process introduced the Family Matters Amendment Bill, proposing that courts may now override antenuptial contracts (ANCs) in certain circumstances – even when married “out of community of property without accrual.”
This comes from a 2023 Constitutional Court ruling affirming that non-financial contributions – like raising children or managing a home – should not leave spouses uncompensated simply because they didn't earn income. This landmark judgement could fundamentally shift how ANC agreements are respected in future court proceedings.
What Is an Antenuptial Contract?
It’s crucial to understand that in South Africa, without an antenuptial contract, a marriage automatically falls in community of property, meaning both spouses share all assets and liabilities equally.
An ANC, however, allows couples to choose a different regime:
Out of community without accrual: Each spouse retains separate estates throughout and after marriage.
Out of community with accrual: Spouses keep their pre-marriage assets separate, but share in the growth of combined assets during the marriage.
These options provide critical clarity, asset protection, and the ability to plan their financial futures – especially for couples with businesses, inheritances, or unique estate dynamics.
The Ethical Implication: Why Courts May Intervene
Traditionally, antenuptial contracts were considered absolute. But under the proposed Bill, courts could now step in if strict enforcement leads to “just and equitable” outcomes – particularly in marriages where one spouse made significant non-financial contributions and could be unfairly disadvantaged otherwise.
It's a nuanced shift: promoting fairness without undermining the principle of legal autonomy. Courts wouldn’t abolish ANCs, but they would have discretion to adjust asset distribution in exceptional cases.
Why You Still Need an ANC And Expert Legal Guidance
Despite these changes, there’s no substitute for a well-drafted antenuptial contract. It remains the most reliable tool for:
-Protecting ownership of pre-marital assets
-Shielding one spouse from debts incurred by the other
-Tailoring your marital financial regime to match your family's needs
But given emerging legal trends, it's more crucial than ever to update your contract to reflect your intentions clearly, build ethical protections that may withstand judicial scrutiny, and revisit your estate and succession plans in tandem with your ANC.
Helping You Navigate Ethical Legal Waters
At Mc Naught & Co., we uphold the highest standards in legal ethics while prioritising both clarity and compassion. Here's what we offer:
Drafting/Updating ANCs: Tailored to your financial goals, changes, and estate planning needs
Asset Protection Advice:Structuring marital regimes to guard pre-marital wealth and businesses
Fairness Assessment: Evaluating how emerging laws may affect your marital contract’s strength
Estate Planning Integration: Aligning your ANC with wills, trusts, and succession plans for complete protection
Act Now – Protect Your Future with Confidence
With legal reform on the horizon, ensuring your antenuptial contract remains fair, and fair-minded, is more important than ever. If you plan to marry, are already married, or simply want peace of mind, reach out to our team.
Contact Us:
☎ +27 (0)87 021 0123 | 🌐 mclaw.co.za
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Source: https://engelsman.co.za/courts-to-gain-powers-to-override-antenuptial-contracts-in-divorce-what-south-africans-need-to-know/
