Postnuptial Agreement in SA

What is a Postnuptial (Postnup) Agreement?

A postnuptial agreement, also known as a postnup, is a legal contract that is entered into by a married couple after they are married. This type of agreement sets out the terms of the couple's financial arrangements and can cover a wide range of issues, including the division of assets and debts, spousal support, and the ownership and management of businesses.

In South Africa, postnuptial agreements are governed by the Recognition of Customary Marriages Act of 1998, which allows couples to enter into these agreements as long as they meet certain requirements. These requirements include that the couple must be married in accordance with South African law, that the agreement must be in writing, and that both parties must enter into the agreement freely and without duress.

Postnuptial agreements are often used by couples who want to clarify their financial arrangements and protect their assets in the event of a divorce or separation. They can also be used by couples who want to make changes to their financial arrangements after they are married, for example, if one partner inherits a significant amount of money or if the couple's financial circumstances change in some other way.

It is important to note that postnuptial agreements are not automatically enforceable in South Africa and must meet certain legal requirements in order to be considered valid. It is also important for couples to seek legal advice before entering into a postnuptial agreement to ensure that their rights and interests are protected.

Postnuptial contracts in South Africa

If you do not sign an antenuptial contract before getting married in South Africa, you will be considered married in community of property according to South African law. The same is true if you sign a contract but do not register it within three months of the date of signing.

However, it is possible to change your matrimonial property system from "in" to "out" of community of property by registering a postnuptial contract under Section 21(1) of the Matrimonial Property Act. If your contract was not registered in a timely manner, you can also apply to the court for permission to register it late under Section 88 of the Deeds Registries Act. This involves both spouses making a joint application to the High Court.

In order to change their matrimonial property system, the following requirements must be met:

• There must be valid reasons for the proposed change.
• All creditors and the Registrar of Deeds must be given sufficient notice of the proposed change.
• The court must be satisfied that no one else will be negatively impacted by the change.

If neither spouse is insolvent and there are no judgments or pending legal actions against them, the application is likely to be approved. If this is not the case, creditors may object to the application.

Steps involved in obtaining a postnuptial agreement

1. Taking instructions and drafting legal documents: This includes the first consultation with a lawyer, the drafting of a founding affidavit, a supporting affidavit, a notice of motion, and letters to creditors. It also includes the drafting of advertisements and placing them in the local newspaper and the government gazette, as well as providing instructions to an advocate in the form of a brief.
2. Obtaining a court date and case number: This involves attending court to obtain a case number and court date and subsequently lodging the necessary documents at the Deeds Office in order to obtain a deeds office report.
3. Advertising the postnuptial agreement: This includes providing for advertisements in the local newspaper and the government gazette, as well as sending a copy of the advertisement to each creditor by registered mail.
4. Advocate's fee for the court application: This is the fee charged by the advocate representing the couple in court.
5. Drafting and registering the postnuptial agreement: This includes drafting the postnuptial agreement, having it executed by a notary public, and attending to its registration in the Deeds Registry.
6. Deeds office fee: This is the fee charged by the Deeds Office for registering the postnuptial agreement.
7. General postage and petty expenses: These are miscellaneous expenses such as postage and other small costs that may be incurred during the process.

How much does a postnup cost?

The cost of a postnuptial agreement, also known as a postnup, in South Africa can vary depending on a number of factors, including the complexity of the agreement and the fees charged by the lawyer or law firm handling the matter.

In general, postnuptial agreements tend to be more complex and time-consuming to draft than antenuptial agreements (also known as prenuptial agreements), as they involve negotiating and resolving issues that have arisen after the couple is already married. This can often result in higher legal fees.

It is difficult to provide an estimate of the cost of a postnuptial agreement without more information on the specific circumstances of the case. It is best to discuss the cost with a lawyer or law firm before proceeding. It is also important to note that the cost of a postnuptial agreement is likely to be significantly less than the cost of a divorce or separation, as it can help to avoid costly legal disputes in the event that the marriage ends.

How to get a postnuptial agreement?

Here are the steps you can take to obtain a postnuptial agreement in South Africa:

1. Seek legal advice: It is important to seek legal advice from a lawyer or law firm before entering into a postnuptial agreement. This will help to ensure that your rights and interests are protected and that the agreement is legally enforceable.
2. Negotiate the terms of the agreement: The next step is to negotiate the terms of the postnuptial agreement with your spouse. This may involve discussions on issues such as the division of assets and debts, spousal support, and the ownership and management of businesses. It is important to be open and honest about your financial circumstances and to reach an agreement that is fair and reasonable for both parties.
3. Draft the agreement: Once you have agreed on the terms of the postnuptial agreement, you will need to have the agreement drafted by a lawyer. The lawyer will ensure that the agreement meets the legal requirements set out in the Recognition of Customary Marriages Act of 1998 and is written in a clear and legally binding manner.
4. Sign the agreement: Both spouses will need to sign the postnuptial agreement in front of a lawyer or a commissioner of oaths. It is important to carefully read and understand the terms of the agreement before signing.
5. Register the agreement: Once the postnuptial agreement has been signed, it must be registered with the Department of Home Affairs within three months of the date of signature. The lawyer or law firm handling the matter will typically take care of this process on your behalf.

It is important to note that postnuptial agreements are not automatically enforceable in South Africa and must meet certain legal requirements in order to be considered valid. It is also important for couples to seek legal advice before entering into a postnuptial agreement to ensure that their rights and interests are protected.

Is a postnup as good as a prenup?

In South Africa, postnuptial agreements (also known as postnups) and antenuptial agreements (also known as prenups) are both legal contracts that can be used to set out the terms of a couple's financial arrangements in the event of a divorce or separation.

Both postnups and prenups can be used to clarify the ownership of assets, debts, and businesses, as well as to determine spousal support and other financial matters. However, there are some differences between the two types of agreements:

1. Timing: A prenuptial agreement is entered into before a couple gets married, while a postnuptial agreement is entered into after the couple is already married.
2. Complexity: Postnuptial agreements tend to be more complex and time-consuming to draft than prenuptial agreements, as they involve negotiating and resolving issues that have arisen after the couple is already married. This can often result in higher legal fees.
3. Enforceability: Both postnups and prenups are subject to the same legal requirements in South Africa and must meet certain conditions in order to be considered valid. However, prenups are generally considered to be more enforceable than postnups, as they are entered into before any issues or conflicts have arisen between the couple.

Overall, both postnups and prenups can be useful tools for clarifying financial arrangements and protecting assets in the event of a divorce or separation. However, it is important to seek legal advice and carefully consider the terms of the agreement before entering into either type of contract.

Postnup attorneys and lawyers in South Africa

There are many attorneys and lawyers in South Africa who specialize in postnuptial agreements, also known as postnups. Postnups are legal contracts that are entered into by a married couple after they are married and set out the terms of their financial arrangements in the event of a divorce or separation.

If you are considering entering into a postnup in South Africa, it is important to seek legal advice from an experienced lawyer or law firm. A lawyer can help you to understand your legal rights and obligations and ensure that the postnup meets the legal requirements set out in the Recognition of Customary Marriages Act of 1998.

There are several ways to find a lawyer or law firm that specializes in postnups in South Africa:

1. Ask for referrals: You can ask friends, family, or other professionals (such as your financial advisor or accountant) for recommendations on lawyers or law firms that specialize in postnups.
2. Search online directories: There are several online directories that list lawyers and law firms in South Africa, including the Law Society of South Africa.
3. Contact professional organizations: Professional organizations such as the Law Society of South Africa or the South African Society of Family Law may be able to provide you with a list of lawyers or law firms that specialize in postnups.

It is important to do your research and choose a lawyer or law firm that you feel comfortable working with and that has experience in handling postnuptial agreements. You may also want to consider getting quotes from multiple lawyers or law firms to compare costs.

Postnup vs prenup

Here is a comparison of postnuptial agreements (postnups) and antenuptial agreements (prenups) in table form:

Feature	Postnup	Prenup
Timing	Entered into after marriage	Entered into before marriage
Complexity	Typically more complex and time-consuming to draft	Typically simpler and quicker to draft
Legal fees	Often higher due to increased complexity	Typically lower due to simpler process
Enforceability	Generally considered less enforceable	Generally considered more enforceable
Purpose	Used to clarify financial arrangements and protect assets in the event of a divorce or separation	Used to clarify financial arrangements and protect assets before marriage

It is important to note that both postnups and prenups are subject to the same legal requirements in South Africa and must meet certain conditions in order to be considered valid. However, prenups are generally considered to be more enforceable than postnups, as they are entered into before any issues or conflicts have arisen between the couple.

Why must an application for a postnup be brought before court?

The High Court is responsible for dealing with changes in the status of parties, such as changing the matrimonial property regime from being married in community of property to being married out of community of property.

Couples who are married in community of property have a communal estate, meaning that all of their assets and liabilities are considered part of the communal estate. When a couple decides to change their matrimonial property regime, it is possible that creditors may be negatively impacted by the change.

In order to change their matrimonial property regime, both spouses must consent to the change and neither spouse can be insolvent or have sequestration proceedings or judgments against them. If this is not the case, creditors who have been notified of the change in marital regime may object to the application in court.

Why might a couple enter into a postnuptial agreement?

There are many reasons why a couple might choose to enter into a postnuptial agreement, including to clarify their financial arrangements, protect their assets, and resolve disputes or conflicts that have arisen after they are married. Postnuptial agreements can also be used by couples who want to make changes to their financial arrangements after they are married, for example, if one partner inherits a significant amount of money or if the couple's financial circumstances change in some other way.

Can a postnuptial agreement be enforced in South Africa?

Postnuptial agreements are not automatically enforceable in South Africa and must meet certain legal requirements in order to be considered valid.