Can you create postnuptial?

Can You Create a Postnuptial Contract in South Africa?

If you did not sign an antenuptial contract before getting married, you will automatically be considered married in community of property under South African law.

This also applies if you signed a contract but failed to register it within three months of signing.

However, it is possible to change your matrimonial property regime from "in" to "out" of community of property by registering a postnuptial contract.

This can be done under Section 21(1) of the Matrimonial Property Act. If your original contract was not registered in time, you could apply to the court for late registration permission according to Section 88 of the Deeds Registries Act.

Let us guide you through this entire process from start to finish.

Why Consider a Postnuptial Contract?

Here are some common reasons why our clients seek high court approval to register a postnuptial agreement:

  1. Freedom to Trade: Each spouse can engage in business activities independently.
  2. Protecting Against Creditors: Shielding your spouse from business-related risks and creditors.
  3. Estate Risk at Death: Mitigating the risk to the joint estate upon the death of either spouse.
  4. Effective Estate and Tax Planning: Easier and more effective planning when not married in community of property.
  5. Reducing Marital Friction: Avoiding conflicts often caused by shared financial responsibilities.
  6. Missed Registration: Addressing situations where an antenuptial contract was signed but not registered in time.
  7. Debt Protection: Postnuptial contracts protect spouses from each other's debts incurred after the contract is registered.
  8. Asset Protection: Protecting assets, especially if one spouse owns a business. Spouses can register assets, such as residential property, under the name of the spouse with the lower risk profile.
  9. Prior Assets: Excluding assets owned before marriage from the joint estate.
  10. Independent Transactions: Enabling each spouse to engage in commercial transactions without needing the other's consent.
  11. Personal Control: Each spouse maintains control over their assets and is responsible for their debts, helping build individual estates.

Why Must the Application Be Submitted to the Court?

The High Court manages the change in marital status from community of property to out of community of property. This involves:

  • Managing communal estates, which include all assets and liabilities.
  • Protecting creditors who may be affected by the change in the matrimonial property regime.
  • Ensuring mutual consent from both spouses.
  • Confirming neither spouse is insolvent or undergoing sequestration proceedings, as creditors can oppose the application if they are notified.

The Process of Changing Your Marital Property System

To change your marital property system, you must obtain consent from the High Court. Here's how you can start:

  1. Contact Us: Send us an email with your contact details and marriage date.
  2. Receive Confirmation: We will send you a confirmation letter, relevant information, and an invoice.
  3. Make a Payment: Transfer the required deposit by EFT or direct deposit and send proof via email.
  4. Draft Contracts: Receive and review draft contracts for both options. Choose your preferred option and inform us of any amendments by email.
  5. Consultation Call: We will discuss your choice and confirm the amendments you want to make. We will finalize your postnuptial contract and draft the necessary affidavits for you and your spouse.
  6. Submit Additional Information: We may request additional information via email and will send you the draft documents in PDF format for your review and signature.
  7. Courier Pickup: Arrange for the documents to be picked up by courier for court enrollment.
  8. Court Order: Once the Court Order is granted, the postnuptial contract will be sent for registration.
  9. Registration Updates: We will keep you informed throughout the registration process until we receive the registered postnuptial contract back from the Registrar of Deeds. We will then scan and email you a copy of the registered contract before mailing the original to you.

We are is here to support you through this process, ensuring a smooth transition and peace of mind.