Post Nuptial Agreements - South Africa

Although most couples are encouraged to complete an ante nuptial contract before getting married, some couples only decide after being married that they would like to change the matrimonial property system applicable to their marriage. In these cases they would have to complete a post nuptial contract, which is a highly complex procedure.

Section 21(1) of the Matrimonial Property Act provides that a husband and wife may apply jointly to court for leave to change the matrimonial property system which applies to their marriage.

The requirements for such an application are as follows:

1. There must be sound reasons for the proposed change.

According to South African Law, parties who wish to become married out of community of property must enter into an ante nuptial contract before the marriage ceremony being concluded. If they do not do so they will automatically be married in community of property.

Many couples are unaware of this and must be able to show the court that it should change their matrimonial property system if it was their express intention that they intended to be married out of community of property when they were married.

2. Sufficient notice of the proposed change must be given to all creditors of the spouses.

The Act requires that notice of the parties’ intention to change their matrimonial property regime must be given to the Registrar of Deeds, must be published in the Government Gazette and two local newspapers at least two weeks prior to the date on which the Application will be heard and must be given by certified post to all the known creditors of the spouses.

3. The court must be satisfied that no other person will be prejudiced by the proposed change.

The parties' matrimonial property system cannot be changed without the High Court’s consent as it relates to a person’s status which makes this quite a serious and lengthy application.

Once the application has been made to the High Court and if all goes smoothly the post nuptial contract will become effective and will officially change the couples’ matrimonial property system, allowing the couple to enjoy their marriage with a new marital regime.

ABOUT THE AUTHOR: Wesley Soutter
Wesley Soutter completed his legal studies at the University of Natal (Durban) in 2005. He thereafter completed his articles at an established Durban firm which was on the super-panel for numerous banks. He received extensive experience in family law, labor law, commercial litigation and corporate law. He was admitted as an attorney in the beginning of 2008 and practiced as an attorney until applying his corporate experience as a solid backing to his new focus of construction and engineering law at the top legal consulting firm in the country for the construction and engineering sectors.

Wesley’s experience has provide him with a notable advantage at his recent appointment as Partner and Director of SNA where he heads up the Construction, Corporate and Labor divisions.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.

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