South Africa:

Changing Your Marital Property Regime


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Introduction: Why sign an Antenuptial Contract

The importance of an antenuptial contract cannot be
over-estimated. In terms of South African Family Law, where a
couple does not sign an antenuptial contract before tying the knot
the marital regime applicable to their marriage will be that of in
community of property. This means, the couple will share equally in
one joint estate, are jointly and severally liable towards their
creditors and does not hold independent contractual capacity. This
further means a spouse to a joint estate cannot bind the estate
contractually without the consent of the other spouse.

The aforementioned explains the importance of signing an
antenuptial contract to protect the financial status of the couple,
determines certain effects on the death of either spouse and to
avoid quarrels in respect of who gets what should the couple decide
to divorce.

Void or Voidable Antenuptial Contract

An antenuptial contract can be void or voidable for a variety of
reasons. The antenuptial contract may be defective in respect of
the identity of the signatories and may well be declared void from
the beginning as if it never existed.

A further example could be that the couple may have legally
composed and executed an antenuptial contract prior to marriage,
but for some reason, it was not registered in the Deeds Office
within three (3) months from the date of marriage. The problem is
if the antenuptial contract is not registered, the legal
consequences will be that of in community of property.

The antenuptial contract may still be binding between the
parties but will not be binding on third parties
(“Voidable”). This means the antenuptial contract may
regulate the proprietary rights between the parties; however,
creditors may still hold the parties liable jointly.

The COVID-19 lockdown period has caused a significant backlog at
the Deeds Office the result of which has been that some antenuptial
contracts did not register in time. Should the antenuptial contract
not be registered within the requisite time period of three (3)
months from the date of signing and the couple have not tied the
knot yet, the antenuptial contract must be re-executed and lodged
with the Deeds Office. Should the antenuptial contract be queried
due to the requisite 3-month period that has elapsed before the
date of marriage, then the parties must bring a High Court
Application as set out below.

What now?

In terms of section 21 of the Matrimonial Property System Act 88
of 1984 as amended (“the Act”), the parties who find
themselves in this unfortunate position may apply to the High Court
jointly for an order changing the marriage from in community of
property to that of out of community of property and to execute a
Postnuptial Agreement. It is, therefore, critical to seek
professional advice timeously.

Originally published Dec 7, 2020

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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