A postnuptial contract is a notarial agreement entered into after marriage that changes the matrimonial property regime governing the marriage. In South Africa, this is the only legally recognised mechanism for married couples to move from a marriage in community of property to a marriage out of community of property — or to amend the terms of an existing antenuptial contract.
Unlike an antenuptial contract (which is signed before the wedding and registered at the Deeds Office), a postnuptial contract requires the High Court's permission. This is because changing your property regime after marriage affects not only the two spouses, but also their creditors — whose rights must be protected. The Court acts as a safeguard, ensuring the change is made for legitimate reasons and that no one is unfairly prejudiced.
A private agreement is not enough. You cannot simply draft a contract between yourselves and call it a postnuptial agreement. The Constitutional Court has repeatedly confirmed — most recently in AM v HM [2020] ZACC 9 — that a postnuptial agreement entered into without court approval under Section 21 is void and unenforceable. No exceptions. The immutability principle means that once married, your regime is fixed unless a court orders otherwise.
The legal authority for postnuptial contracts is Section 21(1) of the Matrimonial Property Act 88 of 1984. The guiding principles for how courts assess these applications were established in the landmark decision of Lourens et Uxor 1986(2) SA 291 (C), which remains the leading authority on Section 21 applications to this day.
Most couples who approach us for a postnuptial contract fall into one of two categories: they either married without understanding the consequences of community of property, or their financial circumstances have changed so significantly that the default regime has become a liability rather than a benefit.
One spouse's business debts or financial difficulties expose the entire joint estate — including the other spouse's salary, savings, and assets. Changing the regime separates these risks.
A spouse in community of property cannot enter into credit agreements, sign suretyships, or transact in immovable property without the other's written consent. This cripples business operations.
Effective estate planning is nearly impossible with a joint estate. Separate estates allow trusts, asset structuring, and tax-efficient wealth preservation for your children.
If one spouse is sequestrated, both spouses lose everything in the community of property. Separate estates ring-fence the financially responsible spouse from the other's insolvency.
Many couples never intended to marry in community of property — they simply didn't know about antenuptial contracts, or ran out of time before the wedding. A postnuptial contract corrects this.
The antenuptial contract was signed but never registered at the Deeds Office within the prescribed period — making it legally ineffective. A postnuptial contract (or late registration) can remedy this.
Entrepreneur Starting a new business
Your spouse wants to start a business with personal liability exposure. Switching to out-of-community status protects your shared home and savings from business creditors.
Expecting a large inheritance
Unless the will specifically excludes the inheritance from the joint estate, it will merge into the joint estate. Changing your will automatically protects future inheritances.
Professional
You want to ensure your estate goes to your children from a previous relationship — not into a joint estate that may end up with your current spouse's heirs.
Section 21(1) of the Matrimonial Property Act provides the mechanism for changing a matrimonial property regime after marriage. It states that spouses — whether married before or after the commencement of the Act — may jointly apply to the High Court for leave to change the matrimonial property system that applies to their marriage.
The word "jointly" is critical. Both spouses must agree to and participate in the application. This is not a remedy available to one spouse against the other's wishes — it is a consensual process.
The Court may only grant the application if it is satisfied that three requirements are met:
Requirement 1 — Sound reasons: There must be legitimate, well-motivated reasons for the proposed change. The applicants must explain why the current regime is inappropriate and how the change will benefit them. "We didn't know" is accepted as a sound reason, but the application must go further: it must demonstrate concrete prejudice or a practical disadvantage under the current system.
Requirement 2 — Sufficient notice: All creditors of both spouses must be notified. Notice must be published in the Government Gazette and two local newspapers at least two weeks before the hearing date. The Registrar of Deeds must also be notified under Section 97(1) of the Deeds Registries Act. Every known creditor must receive notice by registered post.
Requirement 3 — No prejudice: The Court must be satisfied that no person (specifically, creditors) will be prejudiced by the change. The proposed notarial contract must preserve the rights of pre-existing creditors. The application must contain sufficient information about assets and liabilities to enable the Court to make this assessment.
The Lourens et Uxor decision established that the application must also disclose: whether either applicant has been sequestrated in the past (and if so, when, under what circumstances, and the rehabilitation case number); whether there are any pending legal proceedings in which creditors are seeking to recover debts; the domicile and residence of both applicants (and any recent changes); and a draft of the proposed notarial contract, initialed by both parties, showing the Court exactly how the new regime will work.
Once satisfied, the Court will order that the existing matrimonial property system no longer applies and authorise the spouses to enter into a notarial contract. The Court may impose conditions it considers fit. Under Section 21(2)(b), the parties can elect whether the new regime takes effect from the date of the original marriage or from the date the notarial contract is executed — a choice with significant implications for accrual calculations.
A Section 21 application is a formal High Court process. The documentation must be thorough, and the legal formalities must be strictly observed. Here is what must be prepared and filed:
The formal court document requesting the relief (the court order) sought. This identifies the applicants, the Court, and the order requested.
A detailed sworn statement setting out the facts of the case, including: when and where the marriage took place; the current matrimonial property regime; the reasons for the proposed change; a full schedule of assets and liabilities of both spouses; details of all known creditors; whether either spouse has been sequestrated; and any pending litigation. The affidavit must motivate why the change serves the applicants' interests and will not prejudice creditors.
The second spouse's confirmatory affidavit confirms agreement with the application and the facts stated in the founding affidavit.
A complete draft of the proposed notarial contract, initialed by both parties, showing the terms of the new regime — including whether accrual applies, any declared net commencement values, and the clause preserving pre-existing creditors' rights.
Evidence that the required advertisements were placed in the Government Gazette and two local newspapers, that the Registrar of Deeds was notified, and that all known creditors were notified by registered post.
A report from the Registrar of Deeds confirming the current registration status and any registered rights that may be affected.
Solvency is key: If neither spouse is insolvent, neither has any judgments against them, and there is no pending creditor litigation, the application is overwhelmingly likely to succeed. If there are creditors, the application can still succeed, but the Court will require that the proposed contract explicitly preserve those creditors' pre-existing rights.
We have handled hundreds of Section 21 applications and have refined the process to be as efficient as possible. Here is exactly what happens when you instruct us:1
1 Week 1: Complete our online form or meet with us in person. We establish the facts of your marriage, discuss your reasons for the change, determine whether "with accrual" or "without accrual" best suits your needs, and collect information on your assets, liabilities, and creditors.2
Weeks 2–3: We draft the Notice of Motion, Founding Affidavit, Supporting Affidavit, and the proposed Postnuptial Contract. We also prepare letters to all creditors and draft the advertisements for the Government Gazette and local newspapers. You review and sign the affidavits before a Commissioner of Oaths.3
Weeks 3–6: We place advertisements in the Government Gazette and two local newspapers. Simultaneously, we send copies of the advertisement and the notice to every known creditor by registered post. We also lodge documents at the Deeds Office to obtain the Registrar's report. All notifications must be published at least two weeks before the court hearing.
4 Court Application
Weeks 8–16: We brief an advocate to bring the application before the High Court on your behalf. In most cases, the application is heard on the unopposed motion roll — meaning you do not need to attend. If no creditors oppose, the Court grants the order on the papers alone. The advocate presents the application, and the Court issues the order.
5 Execution and Notarisation
Weeks 16–18: Once the court order is granted, we prepare the final Postnuptial Contract for execution. Both spouses attend our offices (or, where possible, we arrange remote execution) to sign the contract before a Notary Public. The contract is then attested by the Notary.6
Weeks 18–22: We lodge the notarised Postnuptial Contract at the Deeds Office for registration. Once registered, the change is legally effective and publicly recorded. We provide you with a certified copy of the registered contract. Any existing antenuptial contract is endorsed or cancelled as appropriate.
Total timeline: From first consultation to registered contract, the process typically takes 3 to 5 months. The main variable is the Court's motion roll availability, which differs between divisions. We work to get your matter on the earliest available date.
A postnuptial contract is a significant legal undertaking involving court fees, advocate's fees, advertisements, and specialist notarial work. We believe in complete transparency, so here is our itemised fee schedule:
| Service Item | Fee |
|---|---|
| Taking instructions, initial consultation, drafting of Founding Affidavit, Supporting Affidavit, Notice of Motion, creditor notification letters, drafting and placement of advertisements, briefing of advocate | R12330 |
| Attendance at Court to obtain the case number and court date, and subsequent lodgement of documents | R500 |
| Delivery of court documents at the Deeds Office, obtaining the Registrar's report, collection of documents, and Deeds Office fees | R500 |
| Section 21(1) advertisements: local newspaper and Government Gazette | R2,000 |
| Copies of advertisements and notices sent to each creditor by registered post | R500 |
| Advocate's fee for the court application | R1,700 |
| Drafting of the Postnuptial Contract, execution before a Notary Public, and registration at the Deeds Office | R1,450 |
| Deeds Office registration fee | R520 |
| General postage and disbursements | R500 |
| Total All-Inclusive Fee | R20,000 |
The fee may increase to R25,000 depending on the estate's complexity, the number of creditors to be notified, and specific advertising costs in your area. We will provide a firm quotation after the initial consultation. There are no hidden costs.
Cost in context: An antenuptial contract before the wedding costs R1,950 and takes a few days. A postnuptial contract after the wedding costs R15,000–R25,000 and takes months to complete. The cost difference alone is the strongest argument for acting before the wedding — but if you missed that window, the investment in a postnuptial contract is still worthwhile. The cost of not changing (insolvency exposure, lost business opportunities, frozen estates) almost always exceeds the cost of the application.
Important limitation — pre-existing debts: The postnuptial contract does not retroactively remove your liability for debts incurred before the registration of the contract. Both spouses remain jointly liable for all debts that existed as at the date the joint estate was divided. The new regime only applies to debts and assets arising after registration. The court order will typically include a clause preserving pre-existing creditors' rights.
When you change from in community of property to out of community of property, you must choose which variant of the new regime to adopt. Your two options are:
Each spouse builds their own separate estate during the marriage. On divorce or death, the growth (accrual) of each estate is compared, and the spouse whose estate grew less has a claim against the other for half the difference. This provides independence during the marriage with fair sharing at the end.
Under Section 21(2)(b), you may declare in the postnuptial contract that the accrual system takes effect from the date of the original marriage or from the date the contract is executed. This choice sets the baseline for calculating each spouse's net commencement value—a critical decision with significant financial implications. We advise you on the best option based on your specific circumstances.
Each spouse keeps their own estate entirely. On divorce, there is no sharing of growth — each spouse walks away with only what is in their own name. This provides maximum independence and protection, but no automatic sharing mechanism.
Our recommendation: For most couples, out-of-community property with accrual is the appropriate choice. It provides the debt protection and financial autonomy you need while ensuring fairness — especially important if one spouse earns significantly less or stays home to raise children.
Out-of-community without accrual is better suited for couples in which both spouses have established, independent financial positions and there is no disparity in earning capacity.
Clients sometimes confuse two distinct legal remedies. It is important to understand which one applies to your situation:
| Feature | Postnuptial Contract (Section 21) | Late Registration (Section 87/88 Deeds Registries Act) |
|---|---|---|
| When it applies | No ANC was ever signed, OR you want to change an existing regime | An ANC was signed before the wedding but was not registered at the Deeds Office in time |
| What it does | Creates a new regime from scratch — requires the Court to authorise a completely new contract | Registers the original ANC that was signed but never lodged — the contract already exists |
| Court required | Yes — High Court application with full notice requirements | Yes — High Court application, but generally simpler |
| Advertisements | Government Gazette + 2 local newspapers + registered post to all creditors | Generally Government Gazette notice is required |
| Typical cost | R15,000–R25,000 | R8,000–R15,000 (generally less complex) |
| Typical timeline | 3–5 months | 2–4 months |
| Key requirement | Sound reasons + no prejudice to creditors | Application must be made within a reasonable time after discovery that the contract was not registered |
Which one do you need? If you signed an ANC before your wedding but it was never registered (or registered late), contact us — the late registration process may be simpler and cheaper. If no ANC was ever signed, a full Section 21 postnuptial contract application is required.
The Constitutional Court confirmed that a postnuptial agreement entered into without court approval under Section 21 is void and unenforceable. The parties had married out of community of property with an ANC excluding accrual. During the marriage, they signed a private agreement purporting to change their property arrangements. The Court held that this was contrary to Section 21 and public policy. The immutability principle means no private agreement between spouses can alter the matrimonial property regime — only a court-sanctioned process can do so.
In a landmark judgment delivered on 21 January 2026, the Constitutional Court confirmed that an ANC signed after a customary marriage (but before a subsequent civil marriage between the same parties) amounts to a postnuptial contract — because the parties were already married under customary law. Since no court approval under Section 21 had been obtained, the agreement was declared invalid and unenforceable. The Court further confirmed that a civil marriage between the same spouses does not terminate the customary marriage, and that any attempt to change the property regime requires compliance with Section 21. This has major implications for couples who married under customary law and later concluded a civil marriage.
The foundational case that established the procedural guidelines for all Section 21 applications. The Court set out the disclosure requirements, notice obligations, and assessment criteria that remain the standard followed by all divisions of the High Court when hearing postnuptial applications today.
Effective from 3 April 2024, this Act deleted Section 21(2)(a) of the Matrimonial Property Act. Section 21(2)(a) had addressed transitional provisions relating to certain marriages historically governed by the Black Administration Act. Its removal forms part of the ongoing legislative effort to eliminate discriminatory provisions from South African matrimonial property law. The core Section 21(1) application process remains unchanged.
