If you do not execute an antenuptial contract prior to marriage, you will deemed to be married In Community of Property in terms of South African law. The consequence would be the same if you signed a contract but it was not registered within three (3) months from the date of signature.
It is possible to change your matrimonial property regime from “in” to “out” of community of property by registration of a Postnuptial Contract in terms of Section 21(1) of the Matrimonial Property Act. Similarly, if your contract was not registered timeously you may apply to court for permission for late registration of your contract in terms of Section 88 of the Deeds Registries Act.
The procedure involves a joint application to the High Court by both spouses, requesting the Court to grant leave to sign and/or register the contract.
For the parties to change their matrimonial property system, the Act provides the following requirements:
- Sound reasons for the proposed change.
- Sufficient notice of the proposed change must be given to all creditors and the Registrar of Deeds
- The court must be satisfied that no other person will be prejudiced by the change.
If neither spouse is insolvent and neither spouse has any judgments or pending legal action against them, then the application will succeed. If this is not the case, then there is chance that creditors may object to the application.
The cost of registering a Postnuptial Contract is estimated as follows presently estimated to be R15,000.00 excluding VAT (if applicable). This includes attorney’s fees for the court application and excludes disbursements such as Deeds Office fees or charges, advertisement costs, postage, correspondent charges (if applicable) and other such costs.
For further information, or if you would like us to refer you to an attorney for assistance, please contact us.