Sometimes, a change in circumstances may lead to a married couple to change, or even cancel, their antenuptial agreement (for instance, couples who later decide to have children may want to change their matrimonial agreement). A prenup can be changed or cancelled, as long as both parties agree with the change – agreement and signature must come from both spouses.
The Matrimonial Property Act (No 88 of 1984) allows a married couple to apply jointly to the court for leave to change the matrimonial property system that applies to their marriage.
If a couple wants to change their matrimonial property regime, they must meet the following requirements:
- There must be sound reasons for the proposed change
- Sufficient notice of the proposed change must be given to all creditors of the spouses
- The court must be satisfied that no one will be prejudiced by the proposed change
The couple must also state whether either of them has been sequestrated (had their assets removed due to debt) in the past and, if so, when, and under what circumstances.
Furthermore, it must be stated whether or not there are any pending legal proceedings in which any creditor is seeking to recover payment of any alleged debt due by the couple of by either of them.
The couple must take care to efficiently motivate the proposed change in the current matrimonial property regime. Applicants must explain why no other person will be prejudiced by the proposed change. In any event, the order sought, and the contract which it is proposed to register, shall contain a provision which preserves the rights of pre-existing creditors.
The disadvantage to making a change to one’s matrimonial property system is that the application is expensive. Also, both spouses have to apply to the High Court on notice to the Registrar of Deeds and all known creditors, to receive leave to sign a Notarial Contract having the effect of a postnuptial contract which, after registration, will regulate the new matrimonial property system.
Therefore, the cheapest and most ideal option for couples is to approach an attorney or notary before the marriage ceremony, to draft a proper antenuptial contract regulating the matrimonial property of the parties involved, without any confusion.
It is important to note that, should a married couple wish to cancel their prenup completely, this may significantly alter the legal rights established for one, or both, spouses. The decision requires thorough consideration before the couple takes action.