POSTNUPTIAL Contracts


Postnuptial Registration of antenuptial Agreements 

Postnuptial registration of an already executed antenuptial contract An antenuptial contract that was executed before the marriage of the spouses, but which was not registered within the prescribed period, is only valid between the spouses. (The spouses will thus be married in community of property as far as third parties are concerned). 

The court may on application by both parties allow for an extension of the period for registration of the antenuptial contract.  The parties must furnish convincing reasons for their failure to register the contract timeously and they must also give evidence that the rights of third parties will not be affected thereby. 

The antenuptial contract is not prepared again, but is lodged in its original form at the deeds office together with the court order. The effective date of the contract will be the date on which the order for extension was issued and not the date of the contract.  Between the date of the marriage and the date of the court order, the parties were thus married in community of property. Only from the date of the court order will they be regarded as being married out of community if property.

Postnuptial execution and registration of an antenuptial contract 

The court may on application by both parties authorise the postnuptial execution and registration of an antenuptial contract, The court will only grant the necessary authorisation if the terms of the contract where agreed upon before the marriage. There must thus have been an express or implied agreement between the spouses to marry out of community of property. The parties must furnish satisfactory reasons for their failure to execute the contract before conclusion of the marriage. The court will always reserve and protect the rights of creditors and third parties. 

Change of matrimonial system (Section 21 of the Matrimonial Property Act) The spouses may jointly apply to the court for leave to change the matrimonial system applicable to their marriage, regardless of how and when they were married.  The court must be convinced that good reasons exist for the application, that sufficient notice has been given to all creditors and that no person will be prejudiced by the proposed change. The court may thereafter order the spouses to conclude a postnuptial contract which will regulate their future matrimonial property system on the conditions as ordered by the court. 

The contract must be executed notarially and must be registered in the deeds registry. Where a postnuptial contract replaces an existing antenuptial contract, the existing contract or a certified copy thereof must be lodged together with the new postnuptial con