C&A Friedlander Attorneys

Marriage is a bond that unites two individuals in love and commitment. During the marriage, however, it is essential to acknowledge the unpredictable nature of life and consider legal measures that can provide security in the event of death or divorce.

Under South African law, parties will be deemed to be married in community of property if they do not execute an antenuptial contract prior to the date of marriage. If the antenuptial contract was executed before the marriage, but not registered within the prescribed period,  which is  generally 3 months from the date that they signed the agreement, the parties will also be deemed to be married in community of property, however, the contract will still be valid between the parties themselves.

Contract executed but not registered –  Section 88 of the Deeds Registries Act 47 of 1937

Section 88 of the Deeds Registries Act 47 of 1937 provides that an antenuptial contract may be executed after marriage by virtue of a court order. However, there has to be an actual agreement between the parties prior to the date of marriage. This agreement may either have been formal or informal. The court may then authorize the execution of a postnuptial contract which will have the effect of an antenuptial contract. This means that the contract will have retrospective effect from the date of marriage, even though it was executed and registered after the conclusion of the marriage.

Certain guidelines for such application were laid down in Ex Parte Oxford, both parties must sign an affidavit, there must be a satisfactorily and acceptable reason why the contract was not concluded before the marriage, there must be an expressed or implied binding agreement between the parties to marry out of community of property, such assertion must be corroborated and a satisfactory reason for the delay must be explained, as soon as the parties became aware of the fact that they were married in community of property they must have acted immediately to rectify the matter, a copy of the proposed contract must accompany the application and the rights of creditors must be protected against the issuing of the order.

No contract at time of marriage – Section 21(1) of the Matrimonial Property Act 88 of 1984

Spouses who wish to change their marital status from in-community property to out-of-community property may apply to court in terms of Section 21(1). This allows spouses who did not have the intention of being married out of community of property at date of marriage to enter into a contract after date of marriage to that effect. A postnuptial contract in terms of Section 21(1) is only effective from date of registration thereof.

This application will have to be made jointly by both spouses wherein they detail the reason for the change, the financial position of both spouses and it must state that no third parties will be prejudiced by this application. The creditors, if any, will need to be listed and the postnuptial contract will have to contain a provision in which the rights of such creditors who had a claim prior to the granting of the order are protected. A copy of the proposed contract must accompany the application.

The postnuptial contract may outline how the spouses intend to deal with their assets such as immovable property, investments, and bank accounts etc. in the event of death or divorce. This contract can stipulate that immovable property obtained after date of marriage which formed part of the joint estate or property obtained prior to marriage, be divested in one or both of the spouses names. Following the registration of the postnuptial contract, there are applications which can be brought to the Registrar of Deeds to ensure that the immovable property is divested to the correct party in accordance with the content of the post nuptial contract.

Should the court be of the opinion that no other person has been prejudiced and good reasons exist for the application, the court may grant an order in which the existing matrimonial property regime is amended and authorize the spouses to enter into the postnuptial contract which will govern the future matrimonial property regime between the spouses.

Once the order has been granted by the court, whether in terms of Section 88 of the Deeds Registries Act or Section 21(1) of the Matrimonial Property Act, the spouses must jointly execute the postnuptial contract in the presence of a Notary Public and such contract will have to be registered within the prescribed time.

Postnuptial contracts therefore provide a legal avenue for couples to ensure that should the marriage end, their interests are adequately protected and conflicts minimized during what can be a challenging time. Should you wish to register a post nuptial contract or if you need any further advice feel free to contact our offices.

Article written by Robyn Warrin, contact details: robynw@caf.co.za / 021 674 2083

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE).