Postnuptial Contracts: It is Never Too Late to Protect Your Future
Change your Matrimonial Property Regime after marriage. Court Application.
In South Africa, if you didn’t sign an ANC before your wedding, you are automatically married In Community of Property. While this symbolises unity, it also means you share 100% of your spouse’s debts and financial risks.
The good news? The law allows you to change your matrimonial property regime after marriage through a Postnuptial Contract application.
Why Change Your Marriage Regime?
Many couples choose to transition to a marriage Out of Community of Property (with or without accrual) for several vital reasons:
- Debt Protection: Protect your assets from your spouse’s creditors or business liabilities.
- Business Freedom: Trade and enter into contracts without requiring your spouse’s written consent.
- Financial Independence: Maintain a separate estate and build your own wealth securely.
- Estate Planning: Ensure that your inheritance or specific assets are preserved for your children rather than being lost to a joint estate.
Under Section 21(1) of the Matrimonial Property Act, spouses may jointly apply to the High Court for permission to change their matrimonial property system.
The court must be satisfied that:
- There are sound reasons for the proposed change.
- Sufficient notice has been given to the Registrar of Deeds and all known creditors.
- No other person (specifically, creditors) will be prejudiced by the change.
Because this process involves changing your legal status, the High Court requires strict adherence to these formalities:
- Formal Notice: Notice must be published in the Government Gazette and two local newspapers at least two weeks before the hearing.
- Creditor Notification: All known creditors must be notified via registered post.
- Draft Contract: A draft of your proposed Postnuptial Contract must be prepared and initialed to show the court exactly how your new regime will work.
- Solvency: Both spouses must generally be solvent (not under sequestration).
We make a complex High Court process "Quick, Easy & Efficient" for you:
- Initial Consultation: Complete our online form. We’ll meet (online or in-person) to discuss whether "With Accrual" or "Without Accrual" best suits your needs.
- Drafting: We prepare your customized Postnuptial Contract and the required High Court affidavits.
- Notifications: We handle legal advertisements and formal notifications to your creditors.
- Court Representation: We brief an advocate to bring the application before the High Court on your behalf.
- Registration: Once the Court Order is granted, we notarize and register your contract at the Deeds Office.
Changing your marriage regime is a significant legal undertaking involving court fees, advertisements, and specialist drafting.
Our All-Inclusive Professional Fees range from R15,000 to R25,000. This variation depends on the complexity of your estate, the number of creditors to be notified, and specific advertisement costs.
Ready to Secure Your Estate?
Don't let the "default" system put your hard-earned assets at risk. Let our expert legal team guide you through the Section 21(1) process with ease.
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POPULAR REASONS COUPLES DECIDE TO APPLY FOR AND REGISTER 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.
MARITAL REGIME OPTIONS - POSTNUPTIAL CONTRACTS
You must choose one marital regime in terms of your Postnuptial Contract. Your choice will have financial and legal consequences. You are therefore urged to carefully consider your options. If you still have questions message us or book a free 20 min consultation with our attorney. Get Started - Explore your options.
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BREAKDOWN OF COSTS - POSTNUPTIAL CONTRACT APPLICATION & REGISTRATION
Our costs are as follows:
| Taking instructions, first consultation, drafting of the Founding Affidavit, Supporting Affidavit, Notice of Motion, drafting letters to creditors, Drafting of Advertisements and placement thereof, instructions to advocate in the form of a brief, including delivery of brief to advocate. | R7330.00 |
| Attendance to Court to obtain a case number and court date and subsequent lodgement of Documents at the Deeds Office for obtaining the deeds office report, cost involved | R500.00 |
| Delivery of Court documents at the Deeds Office for obtaining the report, lodgment of court documents, collection thereof and deeds offices fee in obtaining the report | R500.00 |
| Provision for S.21(1) Advertisements: Local Newspaper, as well as advertisement in the Government Gazette | R2,000.00 |
| Sending copy of the advertisement in the Local Newspaper, as well a Government Gazette to each and every creditor by registered mail | R500.00 |
| Advocate’s Fee for application at Court | R1700.00 |
| Drafting of Antenuptial Contract, attending to execution thereof before Notary Public, and attending to registration thereof in the Deeds Registry | R1450.00 |
| Deeds Office fee | R520.00 |
| General Postage and Petties | R500.00 |
| TOTAL | R15000.00 |
