In terms of South African law, if you do not execute an Antenuptial/Prenup Contract before your marriage then you are automatically by default married in community of property. This means that you and your spouse have a joint estate comprising of all your assets and liabilities and are subject to community of profit and loss which means that you are also liable for each other’s debts and obligations. This will also affect your capacity to enter into several transactions such as obtaining a loan, selling or buying a house or a car without your spouse’s consent. It also have serious and potentially negative consequence for you should you or your spouse be running your own business or in need to protect assets from attachment by creditors.

Majority of married couples only realise the implications of being married in community of property after their marriage as a result of not seeking correct legal advice in relation to the different marital regimes and their advantages and disadvantages.

Our laws does not allow married couples to enter into an Antenuptial Contract, but the good news is that our laws allows married couples to change their matrimonial property regime by registering a Postnuptial Contract. This is provided for in terms of section 21 of the Matrimonial Property Act 88 of 1984.

This means that couple who are already married in Community of Property can change their marriage regime to Out of Community of Property, with or without the application of accrual system.

Procedure

An application is made on Notice of Motion to the High Court by both parties asking 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 matrimonial property consequences going forward. If the Court is satisfied with the application the Court will authorise the parties to sign a Notarial Contract excluding community of property and community of profit and loss with or without the application of the accrual system.

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

• There must be sound reasons for the proposed change;
• Sufficient notice of the proposed change must be given to all creditors by registered post as well as to the Registrar of Deeds;
• The notice of the proposed change must be published in the Government Gazette and two local newspapers at least two weeks before the date of hearing of the application; and
• The court must be satisfied that no other person will be prejudiced by the proposed change in the matrimonial property system of the parties.

If neither spouse is insolvent nor neither spouse has any judgments or pending legal action against them, then the application will most probably succeed. If this is not the case, then there is a chance that creditors may object to the application.

After the granting of such an order by court, the Postnuptial Contract is executed and attested by a Notary Public and registered in the Deeds Office within a stipulated period.

In order for us to prepare an application for a change of your marital regime, we will need the following amongst other documents and information from you and your spouse:

• Copies of identity documents;
• Copies of proof of address;
• Copy of the marriage certificate;
• Occupation and place of employment:
• Reasons why an Antenuptial Contract was not executed before your marriage;
• Sound reasons why you now wish to change your marriage regime;
• Full particulars of assets that both of you currently own (including immovable, movables, investments and cash); and
• Full details of all existing debts and creditors.

Should you wish to change your marital regime and to execute a Postnuptial Contract, then contact us for assistance.