Can we change our marriage regime without going to court?
No. The Constitutional Court has confirmed in AM v HM (2020) that any postnuptial agreement entered into without court approval is void. A private agreement between spouses — no matter how detailed or well-drafted — cannot legally change your matrimonial property regime. The Section 21 court process is the only legally recognised mechanism.
Do both spouses need to agree?
Yes. Section 21(1) requires a joint application — both spouses must consent and participate. If one spouse refuses, the other cannot unilaterally change the regime. However, if a spouse's conduct is seriously prejudicing the other's interest in the joint estate, the affected spouse can apply under Section 20 for an immediate division of the joint estate — which is a different remedy.
Will the change protect me from debts my spouse already owes?
No. The postnuptial contract only affects debts incurred after registration. All debts that existed at the time the joint estate was divided remain the joint liability of both spouses. The court order will include a clause preserving pre-existing creditors' rights — this is a requirement for the application to succeed. The protection applies going forward, not retrospectively.
Can the application be refused?
Yes, though it is uncommon when properly prepared. The court may refuse the application if the reasons given are not sound, if creditors would be prejudiced, if notice was not properly given, or if either spouse is under sequestration. Creditors may also oppose the application if they believe their interests would be harmed. We assess the likelihood of success during the initial consultation and advise accordingly.
How is the joint estate divided when we change regimes?
When the court authorises the change, the existing joint estate must be divided between the spouses. In practice, this is typically done by agreement—the spouses decide how to allocate assets between their new separate estates. The division does not have to be 50/50 (though it usually is, to mirror the joint ownership that existed). Property may need to be transferred between spouses, which has transfer duty and CGT implications that we discuss during consultation.
Do we need to attend court?
In most cases, no. We brief an advocate to present the application on the unopposed motion roll. If no creditors oppose and the papers are in order, the court grants the order without requiring the applicants to be present. You do, however, need to sign the affidavits before a Commissioner of Oaths (which we arrange) and later sign the postnuptial contract before a Notary Public at our offices.
We signed an ANC but it was never registered. Do we need a postnuptial contract?
Does this apply to customary marriages?
Yes. Under the Recognition of Customary Marriages Act, a customary marriage is by default in community of property unless a valid ANC was concluded before the marriage. As the Constitutional Court confirmed in January 2026, an agreement signed after a customary marriage — even if intended as an ANC for a subsequent civil marriage — is a postnuptial contract requiring Section 21 court approval. If you are married under customary law and wish to change your property regime, the Section 21 process applies.
Can we change from out of community of property to in community of property?
In principle, Section 21 allows changes in either direction — the Act refers broadly to changing "the matrimonial property system." However, applications to move into community of property are extremely rare, as they would combine previously separate estates and potentially prejudice the creditors of the wealthier spouse. The vast majority of applications move in the other direction: from in community to out of community.
Can we modify an existing ANC (e.g., add accrual to a contract without it)?
Yes. Section 21 is not limited to changing from in community to out of community. It can also be used to vary the terms of an existing antenuptial contract — for example, adding the accrual system to a contract that excluded it, or removing the accrual system. The same court process, notice requirements, and cost structure apply. The existing ANC is cancelled or endorsed and a new notarial contract is registered.
