Antenuptial Contract Questions to Ask a Notary

Key takeaways

• Ask a South African notary to confirm your existing marital status first, then compare the property systems, explain accrual in figures, identify assets and liabilities that need exact treatment, and set out the signing and registration timetable. Do this well before any civil, customary or religious marriage event that may have legal effect.
• An antenuptial contract (ANC) is not a standard form to sign after the wedding. It records the matrimonial property system agreed by intended spouses before marriage. If an ANC executed in South Africa is used, the Deeds Registries Act requires it to be attested by a notary and registered in a deeds registry within three months after execution, unless a court allows an extended period. Registration affects enforceability against people who are not parties to the contract.
• The questions below are a consultation framework. The answers depend on each person's status, assets, debts, business interests, expected inheritances and estate plan, so the final wording requires advice on the actual facts.

1. Are we intended spouses, or could we already be married?

Give the notary the complete relationship and ceremony history before discussing clauses. This includes any lobolo negotiations or agreement, handing-over or family ceremony, customary-marriage event, civil or religious ceremony, prior marriage, divorce, foreign marriage or civil union that could affect legal status.

This screening question is not a formality. In VVC v JRM and Others, decided on 21 January 2026, the Constitutional Court majority held that an ANC signed after an existing customary marriage and before a later civil marriage was invalid. The existing spouses could not change their matrimonial property system through that ANC; the applicable route was a joint court application under section 21 of the Matrimonial Property Act.

Ask:

• On what facts and documents has the notary determined that we are still intended spouses?
• Could a customary marriage already exist, even if it has not been registered?
• Does either person have an earlier marriage or divorce that needs proof?
• Does a foreign marriage or a connection to another country require specialist conflict-of-laws advice?
• What must happen before the planned ceremony, and what event is the legal deadline?

If status is uncertain, stop the routine ANC process until it is resolved. A later ceremony does not necessarily reset an existing matrimonial property system.

2. Which matrimonial property system fits the agreement we actually want?

Ask the notary to compare the practical effect of:

1. marriage in community of property;
2. marriage out of community of property with the accrual system; and
3. marriage out of community of property with accrual expressly excluded.

The comparison should cover ownership and management during marriage, treatment of growth, exposure to liabilities, and the position on divorce or death. Do not choose from labels alone.

Under section 2 of the Matrimonial Property Act, a marriage out of community of property under an ANC is subject to the statutory accrual system unless the ANC expressly excludes accrual. Ask the notary to show where the chosen result appears in the draft and to explain the consequences in plain language. The antenuptial contract glossary can help with the terminology before the meeting.

3. How would accrual work using our own figures?

Where accrual applies, each spouse keeps a separate estate during the marriage. The statutory claim generally arises only when the marriage ends by divorce or death. The spouse whose estate has shown the smaller accrual, or no accrual, then has a claim equal to half the difference between the accruals, subject to the Act and the contract.

Ask the notary to work through at least two examples using realistic commencement values, debts, excluded assets and projected estate values. A useful discussion should answer:

• What is each person's net commencement value?
• Which increases or decreases are included in the calculation?
• How is the commencement value adjusted for changes in the value of money?
• How would a negative commencement position be treated?
• When does an accrual claim arise, and against whom is it enforced on death?
• Which records would be needed years later to prove the calculation?

The example is an explanation, not a prediction. Asset values, liabilities, tracing evidence and the wording of exclusions can materially change the final calculation.

4. What commencement values should we declare, and how will we prove them?

Section 6 of the Matrimonial Property Act allows a commencement value to be declared in the ANC. If it is not declared there, it may be declared before marriage or within six months after marriage in a statement signed by the other party, attested by a notary and filed with the copy of the ANC in the notary's protocol.

If no value is declared in the ANC or a compliant statement, the commencement value is deemed to be nil unless the contrary is proved. It is also deemed nil where liabilities exceed assets at commencement.

Ask:

• Should the values appear in the ANC or a separate statement?
• What valuation date and method should be used for property, shares, a business, investments or digital assets?
• Should liabilities be listed individually, and what evidence supports each balance?
• How will jointly owned assets be apportioned?
• Where will the signed statement and valuation evidence be kept?

Prepare a dated schedule of assets and liabilities for each person. The antenuptial contract notary checklist is the operational preparation resource for identity, status, asset, debt and appointment records.

5. Which assets should be excluded from accrual?

An ANC can exclude a specified asset from accrual. Section 4 also addresses an asset acquired by virtue of possession or former possession of that excluded asset. The drafting and the later evidence therefore matter.

For every proposed exclusion, ask:

• Is the asset described precisely enough to identify it?
• Does the exclusion cover a replacement asset, sale proceeds, reinvestment or growth, and what does the proposed wording actually achieve?
• How will the owner trace the original asset into a replacement or mixed account?
• Does the exclusion concern ownership during marriage, the accrual calculation, or both?
• Could finance, security, co-ownership or a later restructuring change the position?

Avoid vague entries such as “all business assets” or “my property” without testing what they include. Supply title deeds, account details, company or close-corporation records, trust documents and other identifiers relevant to the particular asset.

6. How will inheritances, legacies and donations be treated?

Section 5 generally excludes an inheritance, legacy or donation received during the marriage, and an asset acquired by virtue of it, from accrual. The ANC can provide otherwise, and a donor or testator can stipulate otherwise. Donations between spouses receive separate statutory treatment in the accrual calculation.

Ask the notary whether the draft changes the statutory position and how inherited or donated value should be traced. Also ask how the ANC should be coordinated with wills, estate-planning documents and any donor or testator conditions. Do not assume that the ANC alone settles every succession, tax, trust or beneficiary question.

7. What happens to a business, shares, a professional practice or trust interest?

Identify the legal interest rather than describing a business informally. The relevant asset may be shares, a member's interest, partnership rights, a loan account, intellectual property, equipment, immovable property or a contractual income stream. A trust asset is not automatically the personal asset of a beneficiary, but trust rights, powers, claims and distributions still require fact-specific advice.

Ask:

• What does each person legally own or control at commencement?
• What value should be recorded, and who will determine it?
• Should a specific interest be included in or excluded from accrual?
• How will retained earnings, dividends, shareholder loans, capital contributions and future restructuring be evidenced?
• Does a shareholders' agreement, partnership agreement, trust deed, funding agreement or professional rule create a conflict?
• What records should be retained to distinguish pre-marriage value from later growth?

The ANC should not be used to invent ownership that the company, trust, property or contract records do not support.

8. What protection does the chosen system provide against debt?

Ask for a creditor-risk explanation that covers both spouses rather than a promise that an ANC “protects everything”. In an out-of-community marriage the estates are separate, but that does not cancel a debt, suretyship, security right, joint obligation or creditor remedy created on the facts.

Section 23(5) of the Matrimonial Property Act also provides that spouses married out of community of property are jointly and severally liable to third parties for debts incurred by either spouse for necessaries for the joint household. Ask how that rule, existing suretyships, joint loans, home finance, business guarantees and possible insolvency affect the intended plan.

Questions for the meeting include:

• Which debts and suretyships already exist?
• Is either person using personal property as security for a business or another person's debt?
• Will future borrowing require joint participation despite separate estates?
• What cannot lawfully be achieved through the ANC against existing creditors?
• Does any transaction require separate insolvency, tax, company or financial advice?

9. What happens on divorce and on death?

Ask the notary to explain both endings separately. For an accrual marriage, section 4 requires the accrual of a deceased spouse's estate to be determined before effect is given to a will, a donation made in contemplation of death or intestate succession.

The ANC does not replace a will, beneficiary nomination, life-policy arrangement, trust instrument or business-succession agreement. Ask who should review those documents and in what order. Each person should understand:

• whether an accrual claim could be payable by or to an estate;
• how liquidity would be found if a claim becomes due;
• which assets are governed by the estate and which by another instrument;
• whether existing wills and nominations reflect the intended plan; and
• which assumptions require advice from an estates, tax or financial specialist.

10. Do we both understand the draft independently?

Ask for enough time to read the draft before execution. Each person should be able to explain the chosen system, commencement values and exclusions without relying on the other person's summary.

Raise any language need, pressure, financial disclosure gap, unequal access to records or possible conflict of interest. Ask whether separate independent advice is appropriate. Do not sign with blank schedules, unresolved values or an expectation that material terms can be inserted after the marriage.

11. Who will execute, register and prove the ANC?

The Legal Practice Act defines a notary as a practising attorney admitted and enrolled to practise as a notary. The Legal Practice Council's public search includes practitioner type and current practising status. Use it to check the selected professional, and ask the professional to confirm responsibility for the notarial and deeds-registration work. The notary directory is the relevant Lexuno discovery route.

Before execution, ask:

• Who will attest the ANC, and where is that person enrolled and practising?
• What identification, marriage-status proof and signing formalities are required?
• On what date will the ANC be executed?
• Which deeds registry will receive it, and who controls the three-month registration deadline?
• What filing or registration evidence will be supplied?
• When and how will each party receive a notarial or registered copy?

The South African Government's deeds-registry service states that the registry keeps copies of ANCs and that a copy can be requested. Retain the executed document, registration details, proof of submission, certified copies and the evidence supporting values and exclusions.

12. What is included in the quote and what would trigger more work?

Request a written quote that identifies the consultation, drafting, revisions, notarial execution, deeds-registry submission, disbursements, copies and follow-up included. Ask whether extra advice on a business, trust, foreign element or complex valuation is separate.

Also ask what happens if the planned marriage date changes, an intended spouse does not disclose an asset, the ANC is signed late, registration is delayed, or the parties discover that a marriage may already exist. Court applications under section 88 of the Deeds Registries Act or section 21 of the Matrimonial Property Act are not routine substitutes for timely pre-marriage advice. They have different requirements and need specific legal assessment.

A controlled sequence before the marriage

1. Resolve existing marital status and the legally relevant ceremony date.
2. Choose a practising notary and confirm the scope of the engagement.
3. Disclose assets, liabilities, suretyships, businesses, trusts, inheritances and foreign connections.
4. Compare the three property-system outcomes using the couple's figures.
5. Agree commencement values and exact exclusions, with supporting evidence.
6. Review the complete draft and obtain separate advice where appropriate.
7. Execute the ANC before the marriage.
8. Record the execution date, registration owner and statutory deadline.
9. Obtain registration evidence and retain copies with the supporting schedules.
10. Reconcile wills, beneficiary arrangements and business or estate plans.

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