Postnuptial Contracts, how to change your Marital Regime

---

In terms of South African law, if you do not properly execute an antenuptial contract prior to marriage you are by default married in community of property. More and more couples are realising the implications of being married in community of property, and by not seeking correct legal advice prior to the marriage, many couples only become aware of the consequences after they are married. 



Although by law you are not allowed execute an antenuptial contract after marriage, the good news is that it is possible to change your matrimonial property regime from in community of property to out of community of property by registration of a Postnuptial Contract by virtue of s 21(1) of the Matrimonial Property Act with the permission of the High Court.
​
Procedure

An application is made to the High Court by both parties, to ask the Court to grant the parties leave to sign a Notarial Contract (having the effect of a postnuptial contract), which after registration will regulate their new matrimonial property system.

In order for the parties to change their matrimonial property system, the Act provides the following requirements:

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

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

Costs

The cost of drafting the Postnuptial Contract should be the same as the cost of an antenuptial contract entered into as if the parties were not married before. However, since an application must be made to the High it is more costly since it includes legal fees, notice to the Registrar of Deeds and costs of the publishing notices in two newspapers as well as the Government Gazette.


Documents needed

In order for us to prepare you documentation, the initial documents and information that we will require includes the following:

• copies of identity documents or passports for both the parties;
• copy of marriage certificate;
• the reason why an antenuptial contract was not registered prior to your marriage;
• the reasons that you wish to now execute a postnuptial contract;
• copies of proof of address for both the parties;
• income tax numbers for both parties (if applicable);
• occupations / job descriptions for both parties;
• the full names and date of birth of your children (if applicable);
• the full particulars of assets that both of you currently own (including movables, immovables, investments and cash); and
• full details of all existing creditors (together with supporting documentation such as most recent statements, etc).

Should you wish to change your matrimonial regime, email us by clicking on the banner below:

---

Click here