If you do not execute an antenuptial contract prior to getting married, your marriage will be regarded as 'In Community of Property' in terms of South African law. The result would be the same if you signed a contract, but it somehow was not registered in the Deeds Office within three (3) months from the date of signature.
Although it is possible to change your matrimonial property regime from 'in community of property' to 'out of community of property' by registration of a Postnuptial Contract in terms of Section 21(1) of the Matrimonial Property Act, it can be an expensive exercise.
Similarly, if your marriage contract was not registered timeously, you may apply to court for permission for late registration of your antenuptial contract in terms of Section 88 of the Deeds Registries Act.
The legal procedure involves a joint application to the High Court by both marriage partners, requesting the Court to grant leave to sign and/or register the antenuptial contract.
For the parties to change their matrimonial property regime, the Act provides for the following:
- 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 nor 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.
Louwrens Koen Attorneys - Postnuptial Contracts