Prenup Without Accrual: Complete Financial Separation
A prenup without accrual is the cleanest separation available in South African law. There is no joint estate, no shared debt, and — importantly — no sharing of growth at the end of the marriage. What is yours stays yours, no matter what happens. It is a powerful tool, but it suits a specific kind of couple.
Legally this is an antenuptial contract (ANC) that excludes the accrual system. On prenuptial.co.za we just call it a prenup without accrual.
What “without accrual” actually means
By default, any prenup in South Africa includes the accrual system — growth during the marriage is shared at the end. To get a prenup without accrual, the contract must say so explicitly. Once it does, three things change:
- Each spouse keeps a fully separate estate, both during the marriage and at the end of it.
- Each spouse is liable only for their own debts — never for the other’s.
- When the marriage ends, by divorce or death, there is no equalisation, no calculation, no sharing. Each spouse simply keeps everything in their own name.
This is the only South African option that delivers full lifelong separation.
Day-to-day during the marriage
Practically, a prenup without accrual works exactly the same as a prenup with accrual during the marriage:
- Two separate estates — you each manage your own assets.
- Two separate credit profiles — your spouse cannot be sued for your debt and vice versa.
- No spousal-consent requirements when buying or selling property, signing leases, or running a business.
The difference only shows itself at the end of the marriage.
What happens at divorce or death
Nothing automatic — but the position has shifted. Each spouse starts from the principle that they keep whatever is in their own name. However, following the Constitutional Court’s 2023 judgment in EB v ER 2024 (2) SA 1 (CC), the divorce court now has a discretion under section 7(3) of the Divorce Act to order a redistribution of assets in any marriage out of community of property without accrual — regardless of when the marriage was concluded. Until that judgment, the redistribution remedy was limited to marriages concluded before 1 November 1984. It is no longer.
The court will exercise the discretion only where it is just and equitable to do so, taking into account each spouse’s direct or indirect contribution to the maintenance or increase of the other spouse’s estate during the marriage. The court still has discretion to award spousal maintenance under section 7 of the Divorce Act, and a surviving spouse can still claim maintenance from the deceased estate under the Maintenance of Surviving Spouses Act.
An example. Take a couple where each spouse is in their late 50s, both previously married, both with adult children from earlier marriages. They each own a home, a retirement fund, and an investment portfolio when they marry. Twelve years later one of them dies. Without a prenup without accrual, the surviving spouse may have a claim against half of everything the deceased built during the second marriage. With a prenup without accrual, the surviving spouse keeps their own estate intact and the deceased’s estate flows to their children — exactly as the couple intended.
Who a prenup without accrual is right for
- Second marriages. Where each spouse already has children and wants estates to flow to those children, not to be merged or shared.
- Business owners with significant pre-existing equity. Where exclusion clauses inside an accrual prenup would not go far enough.
- Couples where one party has substantial inherited wealth or family-trust beneficiaries. Full separation removes any argument about what is and is not shared.
- Couples marrying later in life. Where each party arrived with their own retirement plan and prefers to keep it that way.
An important caveat since EB v ER (2023). A prenup without accrual no longer guarantees zero redistribution at divorce. The court has a discretion to order a just-and-equitable redistribution where one spouse contributed to the other’s estate. For couples who want their assets entirely ring-fenced, the without-accrual contract is best combined with clear documentation of separate financial contributions during the marriage, and — where appropriate — trust or company structures.
Who it is not right for
- Younger first-marriage couples who are still building wealth together. Without accrual, a stay-at-home spouse who sacrifices a career has no claim on the wealth-building spouse’s growth — which is rarely what young couples actually want.
- Couples where one earns substantially more and the other supports the household indirectly. The result on divorce can feel harsh.
For most first marriages, a prenup with accrual is the more balanced choice. A prenup without accrual is a deliberate decision, made for specific reasons.
Compare your three options before marriage
| What changes | No prenup (in community of property) | Prenup with accrual | Prenup without accrual |
|---|---|---|---|
| Document you sign | Nothing — default regime | Notarial prenup (ANC) | Notarial prenup (ANC) |
| Whose assets are whose | One joint estate — 50/50 | Two separate estates | Two separate estates |
| Exposure to spouse’s debt | Fully exposed | Protected | Protected |
| Spouse consent for big decisions? | Yes | No | No |
| Sharing at divorce or death | 50/50 split of the joint estate | Growth shared equally | No sharing — each keeps their own |
| Inheritances | Fall into the joint estate unless the will says otherwise | Automatically excluded | Automatically excluded |
| Best suited for | Couples who genuinely want full sharing | Most first marriages | Second marriages, business owners, large existing estates |
Read the detailed legal commentary on this regime on antenuptialcontracts.co.za →
How your prenup is signed — without coming in
The signing process is simple, and most couples never set foot in our office. We have built the workflow around power of attorney as the default route, so you do not need to come in to sign before a notary.
- Apply through the prenuptial.co.za intake form. Indicate that you want the accrual system excluded.
- We draft the prenup with the express exclusion of accrual under section 2 of the Matrimonial Property Act 88 of 1984, and email it for your review.
- We send each of you a power of attorney. Sign and return scans; originals follow by post or courier.
- Our office signs the prenup before the notary on your behalf, using the power of attorney. You do not need to attend.
- We lodge the signed prenup at the Deeds Office for registration within the three-month statutory window.
If you prefer to sign in person at our Pretoria office, that option is open — just tell us. Either way the fee is R1,950 all-inclusive: drafting, power of attorney, notary, and Deeds Office registration.
Frequently asked questions
Can the court redistribute assets despite a prenup without accrual?
Since the Constitutional Court’s judgment in EB v ER 2024 (2) SA 1 (CC), the divorce court has a discretion under section 7(3) of the Divorce Act to order a just-and-equitable redistribution of assets in any out-of-community-without-accrual marriage — not only those concluded before 1 November 1984. The remedy is not automatic; the spouse claiming it must show that they contributed (directly or indirectly) to the maintenance or increase of the other spouse’s estate. But it is no longer ruled out by the date of the marriage.
Does a prenup without accrual protect us from each other’s creditors?
Yes. Each spouse has their own estate; one spouse’s creditors cannot claim against the other’s assets.
What about the home we will buy together?
You can register property in joint names, in undivided shares (e.g. 50/50 or 70/30). The prenup does not stop you from co-owning specific assets — it just sets the default that everything else stays separate.
Is “without accrual” the same as “complete separation of property”?
Yes. The two phrases describe the same regime: out of community of property without accrual.
Can we change to accrual later if our circumstances change?
Yes, but it requires a section 21 High Court application. Both spouses must consent, and the court must be satisfied no creditor will be prejudiced.
Sign your prenup without accrual
R1,950 all-inclusive. Drafting, notary, and Deeds Office registration are all covered. Nationwide service from Louwrens Koen Attorneys.