Post-nuptial Contracts

In terms of South African law, if you do not execute an Antenuptial Contract prior to getting married you are by default married in community of property. More and more couples in South Africa are realising the implications of being married in community of property. By not seeking proper legal advice prior to their marriage, many couples only become aware of the dire consequences after they are married.

By law, a couple may not execute an Antenuptial Contract subsequent to the date of marriage. However, Section 21(1) of the Matrimonial Property Act makes it possible to change the matrimonial property regime from one in community of property to one out of community of property by the registration of a Postnuptial Contract at the relevant Deeds Office with the permission of the High Court. Similarly, if your Antenuptial Contract was not registered timeously you may apply to court for permission for late registration of your contract in terms of Section 88 of the Deeds Registries Act.

Permission is obtained by way of application to the High Court, in which application the following requirements must be met:

  1. sound reasons for the proposed change must exist;
  2. sufficient notice of the proposed change must be given to all creditors as well as the Registrar of Deeds; and
  1. the court must be satisfied that no other person will be prejudiced by the change in the matrimonial property system.

The procedure involves a joint application to the High Court by both spouses, requesting the Court to grant leave to sign and/or register the contract.

Once the order is granted by the court, the postnuptial contract is executed and thereafter registered in the Deeds Office.

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