For many couples who are planning to wed, signing a prenuptial agreement is far from romantic, and likely not something they want to think about. It is, however, an important subject to discuss with your spouse, knowing that issues may arise in the marriage in the years to come. A couple cannot sign an antenuptial contract after their wedding.
In terms of South African law, if a couple does not sign an antenuptial contract before their marriage, they are automatically deemed to be married in community of property. This means that all assets and liabilities are automatically shared and jointly owned by the couple. A prenup at this point is not possible.
Postnuptial contracts are normally used either early in the marriage when the couple didn’t have time to finalise a prenup before the wedding, or a few (or many) years into a marriage when the couple becomes aware of problems that threaten their relationship and want to gain clarity on areas of conflict.
If a couple has already married without signing a prenup, they are able to register a postnuptial contract. A postnuptial agreement allows married couples to change they matrimonial property regime from “in” to “out” of community of property. This can be an expensive process, however, and requires the following under the Matrimonial Property Act:
- There must be sound reasons for the proposed change
- There must be sufficient notice of the proposed change to all creditors and the Registrar of Deeds
- The court must be satisfied that no other person will be prejudiced by the change
In terms of Section 21 of the Matrimonial Property Act, spouses may, irrespective of when and how they were married, jointly apply to the High Court for permission to change their matrimonial property system.
The High Court will grant such an order under the following conditions:
- There are sound reasons for the proposed change
- All the creditors were given sufficient notice of the application
- No other person will be prejudiced by the proposed change
The following warrant as well-founded reasons:
- Income tax considerations and financial risks
- Previous ignorance about the legal position before the couple’s marriage
- The couple was married abroad
- A different matrimonial property dispensation was in place
If the High Court grants the order, the parties will conclude a postnuptial contract. This contract will manage their future matrimonial property regime and then be registered by the Deeds Office pursuant to the High Court Order.