Antenuptial Contracts and Asset Protection in light of recent Case Law
ANTENUPTIAL CONTRACTS AND ASSET PROTECTION IN LIGHT OF RECENT CASE LAW
Antenuptial contracts (“ANCs”) remain one of the most powerful tools for structuring a marriage in South Africa. Yet, recent Constitutional Court and Supreme Court of Appeal judgments have shifted the ground beneath them. These rulings reveal that ANCs are not untouchable, they are subject to evolving judicial interpretation. For couples considering marriage and asset protection, understanding these developments is no longer optional; it’s essential.
EB v ER NO and Others 2024 (CC)
In a landmark decision, the Constitutional Court signalled a turning point: marrying out of community of property excluding accrual may no longer guarantee asset protection. Judges now have discretion to override ANCs in such marriages, redistributing assets to ensure fairness.
Importantly, this discretion is limited. It does not apply to marriages out of community of property including accrual, where the statutory accrual system already balances fairness with certainty.
DM v CM 2025 (SCA)
The Supreme Court of Appeal confirmed that commencement values recorded in the ANC itself are binding and conclusive for accrual calculations. Once declared in the ANC, a spouse’s estate value at the start of marriage cannot be challenged or re‑litigated, ensuring certainty and finality.
This differs from a Section 6 statement attached to an ANC as the Section 6 statement is prima facie proof which can be challenged with evidence, whereas the ANC declaration is conclusive proof that is not open to dispute.
Parties must therefore be meticulous when recording commencement values in the ANC, as they will govern accrual calculations permanently.
BF v RF 2019 (SCA)
In this matter, the court held that exclusions must be interpreted narrowly in that exclusions apply only to assets expressly listed in the ANC. They do not automatically extend to assets acquired after marriage, unless expressly linked to the excluded property (e.g., dividends or fruits of excluded shares). The court held that the burden of proof lies with the spouse asserting exclusion.
PV v EV 2019 (SCA)
The SCA reaffirmed in this case that ANC clauses must be interpreted strictly in line with contractual principles. Exclusions must be proven with documentary evidence and proper tracing. Courts will reject vague or speculative claims.
ST v CT 2018 (SCA)
This case reinforced the need for full disclosure and careful record‑keeping when claiming exclusions. Courts will not accept vague assertions or incomplete evidence.
Key Takeaways
Together, these judgments reshape the ANC landscape:
- Accrual marriages are safer: Out of community with accrual remains the most secure option, as judicial discretion in EB v ER does not apply.
- Record commencement values in the ANC itself: Accuracy and verification at the time of drafting are critical, as these values are final.
- Draft exclusions narrowly and precisely: Assets must be listed clearly, with explicit treatment of fruits such as dividends or new shares.
- Maintain transparency throughout the marriage: Courts demand full disclosure at dissolution; vague or concealed claims will fail.
Conclusion
Antenuptial contracts remain powerful instruments for asset protection, but recent case law shows that they are not immune from judicial scrutiny. Couples should approach ANC drafting with precision, transparency, and foresight – ensuring that their agreements are both legally robust and aligned with constitutional values of fairness and equality.
