Notary’s Note  ·  Family Law

Can You Penalise a Cheating Spouse in Your Ante-Nuptial Contract?

2026  |  Phumelelo Simelane, Managing Director & Notary Public
After 7 years in practice and over 5 years as a Notary Public, I have consulted with more than 300 people and executed over 150 ante-nuptial contracts for clients from diverse backgrounds. In almost every consultation, the question of infidelity — in one form or another — inevitably comes up. Here are the three questions I hear most often.
Q If my spouse or partner cheats, can I claim money from them in our ante-nuptial contract?

No. Despite what many people believe, South African law does not allow you to use an ante-nuptial contract to financially penalise a spouse for adultery. Our courts have consistently found such clauses to be unenforceable and contrary to public policy. An ante-nuptial contract deals with the patrimonial consequences of a marriage — how assets and debts are divided — not moral conduct or punishment.


Q Can we include a R1 million adultery penalty clause?

No. A penalty clause of this nature would be struck down by a court as against public policy. You cannot contract to monetise infidelity, regardless of how the clause is worded or what both parties agree to at the time of signing.


Q Can we include a clause that the unfaithful spouse forfeits all their assets?

No. A forfeiture clause tied to adultery would be equally unenforceable. Marriage contracts are not instruments of moral accounting — they exist to bring clarity and certainty to the financial relationship between spouses, not to assign blame or punishment for personal conduct.

The Short Answer

You cannot legally penalise a spouse for adultery through an ante-nuptial contract in South Africa — full stop.

That said, what an ante-nuptial contract can do is significant. A properly drafted contract can shield you from your spouse’s existing debts, business risks, and financial exposure. It can ensure that neither spouse is unfairly prejudiced by circumstances beyond their control. It brings structure to what happens to your assets and liabilities — both during the marriage and if it ends.

An ante-nuptial contract is not about revenge clauses. It is about clarity, protection, and certainty.

If you are planning to get married, or are already married and considering your options, take the time to consult with a Notary Public who has the requisite experience to guide you correctly.

Phumelelo Simelane
Managing Director & Notary Public, PSA Attorneys Inc
Over 150 ante-nuptial contracts executed  ·  5+ years as a Notary Public