ANTENUPTIAL CONTRACT

It is extremely important that both parties wishing to marry understand the implications of the type of matrimonial property regime they are about to enter into. Unfortunately, couples focus so much on the marriage ceremony itself that they completely forget the implications of neglecting to make an informed decision regarding the marriage regime, in the unlikely event that they do divorce.

In accordance with the Matrimonial Property Act 88 of 1984, which came into operation on 1 November 1984, there are three forms of matrimonial property regimes in South Africa, namely:

IN COMMUNITY OF PROPERTY

This is the default position in South Africa, therefore if you do not enter into an antenuptial contract, a marriage in community of property will be your default marital property regime.

The automatic consequence of this form of marriage is that the two separate spouses’ estates are joined as one estate. Therefore, all assets and liabilities of the two separate estates are now combined into one estate. Consent is required from each spouse in order to enter into contracts, alienate or burden estate assets.

OUT OF COMMUNITY OF PROPERTY EXCL. ACCURAL

In this system of marriage, each party maintains his or her own estate. However, this system is only applicable and valid where the spouses have entered into contractual agreement known as an ante-nuptial contract (ANC)

The ANC will be the most significant contract that a married couple will sign in their lifetime. It is very important to note that an ANC is entered into before marriage, and Only an attorney who is a notary public may execute and register an ANC. The ANC allows the husband and wife to determine the matrimonial property regime.

The most fundamental purpose of this system of marriage is that each spouse’s estate at the date of marriage is held separately by that spouse throughout the marriage (referred to as “exclusion of community of property”). Each spouse controls his/her own estate exclusively, without interference from the other spouse, although each has a duty to contribute to the household necessaries according to his/her means. This system gives each spouse absolute independence of contractual capacity and protects each spouse’s estate. This is what is known as the "what's yours is yours and what's mine is mine" scenario.

OUT OF COMMUNITY OF PROPERTY WIITH ACCRUAL

This system is only applicable and valid where the spouses have entered into contractual agreement before the marriage, known as an ante-nuptial contract (ANC)

The two spouse’s estates remain completely separate, with each spouse being able to dispose of their assets as they deem fit. Each spouse is able to maintain independence.

Parties must specifically choose to either include or exclude the accrual system in their ANC. The accrual system will only come into effect upon death or divorce and therefore nothing changes until either of the two aforesaid events take place. The accrual provides for each estate to be measured, together with the respective growths from date of marriage. The growth in both estates are determined and the party whose estate that has shown the greater growth during the marriage must split the difference with the other spouse, in equal shares.

POSTNUPTIAL CONTRACT

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

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