Business Owners: Why an Antenuptial Contract Matters

If you own a business — or plan to start one — the matrimonial regime you choose decides how exposed your spouse’s assets are to your business risk, and how much friction enters your day-to-day operations. For most business owners, an antenuptial contract is not a luxury; it is operational hygiene.

The two practical problems for business owners

1. Spousal consent slows the business

If you marry in community of property, certain transactions require your spouse’s written consent under section 15 of the Matrimonial Property Act. In a business context this catches:

• Suretyship for company debts
• Major credit facilities (overdrafts, business loans, vehicle finance)
• Sale or purchase of immovable property held by the business
• Withdrawal of certain investment products

Your bank will refuse to release funds without your spouse’s signature. Your accountant will ask for it before signing tax returns. Your lawyer will need it on suretyship documents. It frustrates business owners constantly — and most discover it for the first time when their bank says no.

2. Business risk leaks into your spouse’s assets

Under in community of property, your business’s debts are joint debts. If the business fails — if a supplier sues, if a lender calls a loan, if you face a personal claim arising from the business — your spouse’s contributions to the joint estate are exposed. The home, the savings, the retirement annuity. All of it sits in the joint pool.

An antenuptial contract walls this off. Two separate estates means your business risk stays with you. Your spouse’s assets are protected.

Which contract suits a business owner

Either out-of-community option works — the choice depends on circumstances:

With accrual + business excluded

If you are still building wealth together and your spouse views the marriage as a partnership, the with-accrual option can work well. The contract specifically lists the business (or your shareholding) as an excluded asset. Everything else — salary, savings, property, investments — participates in the accrual. This is often the right choice for younger first marriages where one spouse runs the business.

Without accrual

For couples in a second marriage, where one spouse already has a substantial business, or where the business is held in a trust or family-shareholding structure, the without-accrual option is usually cleaner. Two completely separate estates, no automatic sharing of growth, no calculations needed at the end.

Excluding the business specifically

Where you choose with-accrual but want the business itself excluded, the antenuptial contract names the asset specifically. Drafting matters here:

• Business name, registration number, and percentage holding — the business must be uniquely identified
• Subscription value or shareholders’ loan account — the value at the date of marriage, where relevant
• Trust beneficiary status — if the business is held by a trust of which you are a beneficiary, this should be addressed too
• Substituted assets — if you sell the business and reinvest the proceeds, the substitution principle should apply

We discuss the structure when drafting and ensure the exclusions reflect what you actually want to protect. More on excluded assets.

What about a co-owned business with your spouse?

If both of you own and run the business together, the regime decision is more nuanced. We typically recommend the with-accrual option in this case — the business itself participates in the accrual, growth is shared fairly, but each spouse retains their own personal estate independently of the business.

Related: With accrual · Without accrual · Excluding assets from the accrual