When Courts Can Override Your Antenuptial Contract: What You Should Know.

If you are married out of community of property without accrual, you may assume that your antenuptial contract (ANC) provides finality and certainty in the event of divorce or death. However, a significant Constitutional Court decision, coupled with expected legislative reforms, suggests that courts now have broader powers to intervene where fairness and justice require it, even when the terms of the ANC exclude accrual.

In the consolidated EB (born S) v ER (born B) and Others; KG v Minister of Home Affairs and Others (CCT 364/21; CCT 158/22) [2023] ZACC 32; 2024 (2) SA 1 (CC) judgements, handed down on 10 October 2023, the Constitutional Court declared section 7(3) of the Divorce Act 70 of 1979 unconstitutional. That section previously only applied to marriages out of community of property concluded before 1 November 1984. The ruling means that redistribution claims can now potentially be brought even in ANC marriages entered into after that date, and importantly, in matters where the marriage ends in death rather than divorce.

This development is particularly significant and even welcome, for spouses who have made indirect, non-financial contributions to a marriage, such as caregiving, homemaking, or supporting a partner’s career, yet who would have walked away with little to no recognition of that contribution under the strict terms of their ANC. The Court's decision reasserts the constitutional imperative to ensure substantive equality, especially in the context of historically gendered roles within marriages.

Parliament has been given 24 (twenty four) months to amend the Divorce Act to bring it in line with the judgment. In the interim, courts are expected to "read in" the necessary changes to apply the redistribution remedy to marriages regardless of when they were concluded. While this creates a degree of legal uncertainty, it also opens the door for more equitable outcomes in a broader range of matrimonial disputes.

What this means in practical terms is that the antenuptial contract may no longer be the absolute shield many believed it to be. Courts retain the power to intervene and redistribute assets where justice demands. It also signals a greater willingness by the judiciary to balance contractual freedom with constitutional values of fairness, dignity, and equality.

Spouses in ANC marriages, especially those who have contributed in non-financial ways, should consider seeking legal guidance on whether these reforms could affect their rights. Similarly, parties negotiating new antenuptial contracts may wish to do so with these possible redistributive powers in mind.

This shift in South African family law underscores a broader theme: private contracts cannot always override the Constitution. As the law evolves, the balance between contractual autonomy and equitable relief continues to be refined, ensuring that family law remains responsive to the lived realities of marriage and its breakdown.