F.A.Q - POSTNUPTIAL CONTRACTS

The parties need the approval of the High Court to register a postnuptial contract. This means drafting a motion application to court, notifying various parties, advertisements and briefing an advocate to petition the court. Thereafter with the permission of the court (court order) the parties may appear before the Notary Public to execute a Postnuptial Contract that is registered in the office of the Registrar of Deeds. Before marriage, the parties simply execute an antenuptial contract before a Notary Public without the High Court's permission.  Our typical costs for an antenuptial contract are R1450 and R15 000 for a Postnuptial contract.
Typically, it takes 3 - 4 months to acquire the High Court order and 7 -14 working days for the registration of the postnuptial contract.
  • Freedom to trade.
  • Exposing spouse to creditors and business risk.
  • Risk of joint estate at death of either spouse.
  • Parties cannot do effective Estate or Tax planning being married in community of property.
  • Being married in community of property causes friction in the marriage.
  • Parties entered into an antenuptial contract before marriage but the contract was nor registered in time or at all. 
  • The parties will not be held liable for the debts of a spouse that such spouse may have incurred after registration of the postnuptial contract. 
  • The parties will not be held liable for the debts of a spouse that such spouse may incur after registration of the postnuptial contract. 
  • Assets may be protected, particularly if one of the spouses has a business in his or her own name. The parties may decide to register assets such as their residential property in the name of only one spouse, being the spouse with the lowest risk profile. The assets of each spouse will also be safe if the other spouse is sequestrated. 
  • One or both spouses may have assets prior to the marriage that they want to exclude from the joint estate. 
  • Spouses may enter commercial transactions without the consent of their spouse.
  • Each spouse retains control over his or her assets, builds his or her own estate and is responsible for his or her own debts.
The average Postnuptial Contract costs R15000.
Yes. Although by law you are not allowed execute an antenuptial contract after marriage, the good news is that 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 by virtue of s 21(1) of the Matrimonial Property Act. Permission from the High Court is necessary. Let Louwrens Koen Attorneys assist with the process.
The matrimonial property regime that will be applicable to the marriage as well as any contractual clause that is not prohibited by law.
An antenuptial or prenuptial agreement is much faster, cheaper, and easier to implement than a postnuptial agreement. Remember that you need permission from the High Court to register a Postnuptial Agreement. That said it is usually much better to register a Postnuptial Agreement than to be exposed to various risks and inconveniences being married in community of property.
The short answer is, “No, it's never too late to get a postnuptial agreement,” also known as a postnup. Some couples mistakenly believe that they can simply enter into a postnuptial agreement after the wedding. However, you need to understand the difference between prenuptial and postnuptial agreements and the fact a postnuptial agreement is much more expensive to enter. 

Entering into postnuptial agreement after marriage with the permission of the court may still have significant benefits for the parties. 
In terms of the South African Law, there are only two types of marital regimes:
  • In community of property
  • Out of community of property (with or without application of the accrual system)
When a couple does not enter an antenuptial agreement prior to their marriage, they will automatically be married in community of property.

The Matrimonial Property Act allows any couple to apply to the High Court for the amendment of their matrimonial property regime.
However, the following requirements need to be met before any changes can be made to the matrimonial regime:
  • The couple should have a valid reason for their proposed changes to their matrimonial regime.
  • A notice of their intention to change must be given to the Registrar of Deeds and should be published in the Government Gazette and two local newspapers, two weeks prior to the date on which the application will be heard.
  • The notarial contract that the parties propose to register must be drafted and annexed to their application.
  • The proposed changes should not be prejudice toward any other person.
  • The rights of creditors must be preserved.
  • The application must contain information about the parties' assets and liabilities.
Once the court is satisfied that the requirements have been met, it will make an order stating that the existing matrimonial property regime may be changed by entering into a Postnuptial Contract registered in the office of the Registrar of Deeds. 
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 
A postnuptial agreement will only be legally binding once the High Court ordered that the existing matrimonial property system shall no longer be applicable, and the postnuptial agreement will regulate the spouse's future matrimonial property system.
The short answer is no or at least highly unlikely. You will need to petition the High Court by means of a Motion Application to get permission. Once permission is granted by means of a court order you will need to draft a specialised legal document and enter into said agreement before a Notary Public whereafter the agreement must be registered in the office of the Registrar of Deeds within a certain time. Let the experts assist you herein.
The Bottom Line. In certain marital situations, a postnuptial contract is strongly recommended for spouses who didn't sign a antenuptial contract. Signing and entering into a Postnuptial agreement may hold significant benefits for both spouses.

The most common consequences of a postnuptial agreement and marriage out of community of property are as follows:

  • The parties will not be held liable for the debts of a spouse that such spouse may have incurred after registration of the Postnuptial Contract. 
  • Assets may be protected, particularly if one of the spouses has a business in his or her own name. The parties may decide to register assets such as their residential property in the name of only one spouse, being the spouse with the lowest risk profile. The assets of each spouse will also be safe if the other spouse is sequestrated.
  • One or both spouses may have assets prior to the marriage that they want to exclude from the joint estate. 
  • Spouses may enter into commercial transactions without the consent of their spouse.
  • Each spouse retains control over his or her assets, builds his or her own estate and is responsible for his or her own debts after registration of the Postnuptial Contract. 
Here are important reasons to apply to court and sign a postnuptial agreement:
  • You have married someone with significant debt.
  • You Wish to Protect Your Assets.
  • You Want to Ensure Financial Security for Both Parties.
  • You Want to Protect Your Business.
  • You do not want to expose your spouse to your business risk. 
Complete our Online Application Form once you have explored the different matrimonial property regimes available. We will make contact and draft a pro forma application & contract within 3 business days of receipt with instruction how to proceed.

You and your future spouse will attend a meeting with us either in person (preferred) or via (TEAM or Zoom) and duly sign the documentation before a Commissioner of Oaths and return the original documents to us via courier (these courier costs will be for your account) or you can hand deliver the original documents to us.

Upon receipt of the original documentation, we will arrange for the application to court and thereafter for the execution thereof before a duly practicing and admitted Notary Public who will also ensure that your Antenuptial Contract is registered in the Deeds office.
The total costs can range from R 15 000 – 00 should your matter be straight forward, or up to R 20 000 – 00 should it be more complicated. Most of our applications costs R15000 all-inclusive. Contact with us to discuss your unique circumstances and we will give a no obligation quotation.

Yes, a postnuptial agreement can protect future assets acquired after the registration of the postnuptial agreement in the office of the Registrar of Deeds.
When you are already married, you still have options to protect inherited assets. You could apply to court and register a postnuptial agreement with your spouse. This type of agreement is like an antenuptial contract and addresses similar issues. You could opt to sign a postnup after marriage, agreeing to keep future inheritance's as separate property.
If you and your spouse are married in community of property, this means that you share a joint, undivided estate that is made up of your respective assets and liabilities, including those that accrued prior to the date of your marriage. As the default marital regime, there is typically no antenuptial contract that supports a community of property marriage, and the legal consequences of your marriage are set out in the Matrimonial Property Act of 1984.

The community of property marital regime has many shortcomings, especially when it comes to debt. Both spouses in such a marriage remain jointly liable for each other’s debt, including any debt that either spouse incurred before the marriage. If your spouse dies heavily indebted, even if you had no knowledge of the debt, it could have devastating consequences when it comes to winding up the joint estate. Here’s what happens.

On the death of the first-dying spouse, the entire joint estate is wound up. This is because there can be no ‘joint estate’ if there is only one owner. The executor of the joint estate will need to first settle all the liabilities that exist in that estate regardless of who incurred the debt or when the debt was incurred. Remember, spouses to a community of property marriage are jointly and severally liable for all the debt regardless of whose name the debt is registered in, including all contractual debt, loans, mortgage bonds, and credit cards.

Once the executor has paid all the estate’s creditors, you will then have a claim for 50% of whatever is left in the deceased estate, while the balance will devolve on your spouse’s nominated beneficiaries in the event of testate succession, or on his heirs in terms of the Intestate Succession Act. Where the first-dying spouse was heavily indebted, the surviving spouse can be left financially vulnerable – even financially devastated – because of her partner’s actions while he was alive.

Once the banks receive notification of your spouse’s death, it is possible that his accounts will be frozen. If you and your spouse share a joint bank account, this may leave you in a position where you are unable to draw money from your bank accounts, keeping in mind that no debit orders can run off a frozen bank account. While the executor can apply to the Master to have funds released for the maintenance of the surviving spouse, this process can be time-consuming and can leave the surviving spouse financially cash strapped.