Can you do an ANC after marriage?

Considering an Antenuptial Contract After Marriage? Here’s What You Need to Know 📝

Many couples opt for an antenuptial contract (ANC) before tying the knot, which is the ideal situation.

But what if you’ve already married in community of property and later wish to switch to a different marital property system?

Can you still make this change? Let’s delve into the details.

Can You Change Your Marital Property Regime?

Yes, it’s possible!

The Matrimonial Property Act allows couples to apply jointly to the court to alter the matrimonial property system that governs their marriage.

This means you can change from being married in community of property to being married out of community of property, but there are specific steps and requirements involved.

Requirements for Changing Your Marital Property System

To successfully change your marital property regime, South African law outlines the following prerequisites:

  1. Sound Reasons for Change: The court needs to be convinced that there are valid reasons for the proposed change.
  2. Notification: You must notify the Registrar of Deeds and publish your intention in the Government Gazette and two local newspapers at least two weeks before the application hearing. Additionally, all known creditors must be informed via certified post.
  3. Creditor Protection: The court must be assured that no creditors will be adversely affected by the change. This includes providing detailed information about your assets and liabilities to demonstrate that no parties will be prejudiced.

The Process and Cost Implications 💸

Switching to an antenuptial contract post-marriage isn’t simple or cheap.

You and your spouse need to apply to the High Court for permission, notifying the Registrar of Deeds and all known creditors.

You must also present strong reasons for the change, which means it’s not something you can decide on a whim.

A Case in Point: John and Jane’s Dilemma 🤔

Imagine John and Jane, who got married in December 2022 intending to be married out of community of property.

They planned everything meticulously but forgot to consult a Notary to execute their ANC before the wedding.

They remembered only in January, after the marriage had already taken place. This situation raises several questions:

  • Is their marriage valid?
  • What property regime governs their marriage now?
  • Can they still execute an antenuptial contract?

Without professional legal advice, these questions can be confusing.

However, as long as all other marriage requirements under the Marriages Act 25 of 1961 were met, the absence of a pre-wedding ANC does not affect the validity of their marriage.

The ANC only dictates the type of property regime in place, not the validity of the marriage itself.

Understanding the Legal Consequences ⚖️

Many couples enter marriage without considering the legal ramifications, later realizing they are automatically married in community of property.

This can be problematic if, for instance, one needs to improve their personal credit rating but faces rejection due to their spouse’s debts.

The good news is that you can still change your marital property system through a postnuptial contract.

The bad news? It involves an expensive court application and several hurdles.

Securing a Court Order

The Matrimonial Property Act allows couples to apply jointly to the court for permission to change their property regime.

To obtain a court order, you must demonstrate:

  • Sound Reasons: There are legitimate reasons for wanting to change the property system.
  • Creditor Notification: All creditors have been adequately notified of the proposed change.
  • No Prejudice: No other parties will be negatively impacted by the change.

A Cautionary Tale: The Couple Without Court Authority 🚫

Consider a couple married out of community of property excluding accrual.

The wife, fearing insecurity in case of divorce, had her husband sign an agreement entitling her to half his estate.

However, this agreement was never court-sanctioned and was merely kept by friends.

During their subsequent divorce, the wife’s claim failed because the agreement lacked the required court approval.

Attempts to enforce it as an agreement anticipating divorce were also rejected, as the court found their marriage was normal post-agreement.

Final Thoughts 💭

Changing your marital property system post-marriage is complex and costly, but it is feasible with sound legal guidance and a compelling case.

Always consult a legal professional to navigate these waters and ensure all legal requirements are met.

Embrace this knowledge to make informed decisions about your marital property regime and secure your financial future with confidence!