Postnuptial Contracts

If you married without signing an Antenuptial Contract (ANC), you are automatically married In Community of Property. While this concept captures the romantic ideal of "unity," the legal reality can lead to significant shared vulnerability. In this regime, both spouses are jointly and severally liable for each other’s debts.The good news is that it is never too late to fix this.At Louwrens Koen Attorneys, we specialize in helping couples transition to a secure financial future through a Postnuptial Contract.

What is a Postnuptial Contract?

A postnuptial contract is a legal agreement entered into after the marriage has already been concluded.Under Section 21(1) of the Matrimonial Property Act 88 of 1984, the law allows spouses to apply to the High Court for permission to change their matrimonial property system. This legal mechanism is typically used to move from a marriage "In Community of Property" to one "Out of Community of Property" (with or without the accrual system).

Why Should You Change Your Marital Regime?

Couples often only realize the restrictive implications of being married In Community of Property after significant life events or changes in their financial status.Here are the most common reasons our clients choose to register a postnuptial contract:

• Business Independence & Freedom to Trade:Entrepreneurs often find the default regime restrictive. A postnuptial contract allows you to trade, sign surety, and enter into commercial contracts without needing your spouse’s written consent for every transaction.
• Asset Protection:It safeguards your personal assets (such as the family home or retirement savings) from your spouse’s potential business risks. If one spouse faces insolvency, the other spouse’s assets remain safe.
• Protection Against Debt:It ensures that you are not held liable for debts incurred by your spouse after the registration of the new contract.
• Estate Planning:It provides clarity for second marriages or blended families, ensuring that specific inheritances are preserved for children from previous relationships.
• Correcting "Wedding Rush" Mistakes:Many couples intended to sign an ANC but simply ran out of time or received poor advice before the wedding day. This process rectifies that oversight.

The Legal Process: How It Works

Unlike a standard Antenuptial Contract, which is a simple registration before marriage, a postnuptial change requires judicial oversight. Because the change affects the rights of third parties (like banks and creditors), the High Court must approve it.Step 1: Drafting the ApplicationWe prepare a joint application to the High Court, supported by affidavits from both spouses explaining the reasons for the change.Step 2: NotificationTo ensure transparency, notice of the intention to change the regime must be published in the Government Gazette and two local newspapers at least two weeks before the hearing. We also notify all known creditors via registered post.Step 3: The Court HearingAn advocate appears in the High Court on your behalf to prove that there are "sound reasons" for the change and that no creditor will be prejudiced. You generally do not need to appear in court personally.Step 4: Execution & RegistrationOnce the court order is granted, the spouses sign the Notarial Postnuptial Contract before a Notary Public. It is then formally registered at the Deeds Office.

A Crucial Note on Customary Marriages

There is a common misconception among couples entering into customary marriages. Many believe they only need an ANC before their "civil" ceremony (at Home Affairs or church).The Legal Reality:South African law views the marriage as beginning from the moment the customary requirements (such as the conclusion of lobola negotiations) are met. If you did not sign an ANC before these customary rites were concluded, you are likely already married In Community of Property. In this case, a postnuptial contract is the only way to change your regime.

Timeline and Costs

The entire process typically takes between three and five months, depending on the court roll and Deeds Office timelines.Because this procedure involves a High Court application, public advertisements, and advocate fees, it is more costly than a pre-marital ANC. At Louwrens Koen Attorneys, our typical cost for a straightforward, all-inclusive postnuptial application is approximately R20,000.

Why Choose Louwrens Koen Attorneys?

Navigating the High Court requires precision, experience, and strict adherence to timelines. We provide a streamlined, "Quick, Easy & Efficient" service. We handle the entire burden—from drafting affidavits to placing advertisements and final registration—so you can focus on your future.Don't leave your financial security to the default legal system.

Contact Us

Ready to secure your estate and gain financial independence?Louwrens Koen Attorneys

• Tel: 087 0010 733
• Email: info@louwrenskoen.co.za
• Web: www.postnuptialcontracts.co.za

Under South African law, the valid execution of an Antenuptial Contract (ANC) is only the first step in securing a specific marital regime; the second, equally critical step is its timeous registration. Failing to register an ANC within the legally prescribed periods—three months if executed within South Africa or six months if executed abroad—carries significant legal and financial consequences.

The following details the specific consequences of failing to register an ANC timeously:

1. Automatic Reversion to the Default RegimeIf the ANC is not registered at the Deeds Office within the prescribed timeframe, it loses its legal force against the outside world. Consequently, the marriage is automatically deemed to be in community of property. This occurs even if the couple signed the document before a Notary Public and fully intended to be married out of community of property.

2. Loss of Protection Against Third Parties

An unregistered ANC is generally considered contractually binding only between the spouses themselves but is not enforceable against third parties, such as creditors. This creates a "split" legal status where, although the spouses may believe they have separate estates, the law treats them as having a single joint estate in all dealings with the public.

3. Exposure to "Liability Contagion"Because the couple is now effectively married in community of property, they face joint and several liability for all debts. 

This lead to several risks:

• Shared Debt: Each spouse becomes 100% responsible for the other's debts and financial obligations, whether incurred before or during the marriage.

• Asset Vulnerability: Creditors of one spouse can attach and sell assets belonging to the other spouse to satisfy debts.• Insolvency Risks: If one spouse is declared insolvent, the entire joint estate is typically sequestrated, potentially leaving both partners without assets.

4. Administrative and Financial ImpedimentsFailing to register the contract on time removes the financial independence the couple initially sought. In a community of property marriage, written consent from the other spouse is required for major financial transactions, such as buying or selling immovable property or entering into credit agreements. Additionally, at the death of the first-dying spouse, the joint estate's liquidity is often frozen, which can cause immense hardship for the survivor until the estate is processed.

5. Costly Legal RectificationRectifying a failure to register an ANC is far more expensive than the initial registration. Couples have two primary legal paths, both of which require an application to the High Court:

• Section 88 of the Deeds Registries Act: This is a corrective tool used when a couple can prove they intended to marry out of community and had an agreement in place before the wedding. If granted, the court authorises the "postnuptial execution" of a contract that has retrospective effect to the date of the marriage.

• Section 21 of the Matrimonial Property Act: If the couple cannot prove a prior agreement, they must apply to change their regime. This process is prospective, meaning the new regime only takes effect from the date of registration, and all debts incurred between the wedding and registration remain joint responsibilities.The costs for these High Court applications can range significantly, with some sources estimating from R20,000.

Our costs are as follows:

                                                                                                                                                                                                                                      Protocol nr. ________ .-

POSTNUPTIAL CONTRACT, HAVING THE EFFECT OF  AN ANTENUPTIAL CONTRACT, IN TERMS OF  SECTION 88 OF THE DEEDS REGISTRIES ACT 47 OF  1937 

BE IT HEREBY MADE KNOWN THAT on ________________________ 2022 before me, NOTARY [MXXXX] of PRETORIA in the Province of GAUTENG Notary, duly sworn and admitted, and in the presence of the subscribing witnesses personally came and appeared:                                           

 XXXXXXXXXXXXXXXXX                                            
IDENTITY NUMBER: 6XXXXXXXXXX                                                             (the “HUSBAND”)                                              

                             And                           

XXXXXXXXXXXXXXXXXX

IDENTITY NUMBER: XXXXXXXXXXXXX                                                       (the “WIFE”) 

Married in community of property to each other WHEREAS the terms of this Postnuptial Contract have been agreed between the Husband and the Wife before the marriage but was not registered in the Deeds Office within a period of three months as prescribed in terms of Section 87 of the Deeds Registries Act 47 of 1937; 

AND WHEREAS they consequently entered into a marriage with each other in community of property on 8^th of August 2017; AND WHEREAS the High Court of South Africa, Gauteng Provincial Division, Pretoria under case number ___________ on the _____ day of ___________________ issued an order granting permission for the registration of this Postnuptial Contract in terms of section 88 of the Deeds Registries Act 47 of 1937, having the effect of an antenuptial contract as was agreed to between the Husband and the Wife prior to date of marriage; 

1.         During the marriage there shall be no community of property between them. 

2.         During the marriage there shall be no community of profit and loss between them. 

3.         The accrual system referred to in Chapter 1 of Act nr 88 of 1984 shall not apply to their marriage from the date of the conclusion of their marriage. 

4.         This Court Order shall not prejudice or restrict the rights of any creditor of any of the Applicants as on the date of registration of the Postnuptial Contract. 

THUS DONE AND EXECUTED AT PRETORIA ON THE DAY, MONTH AND YEAR FIRST AFOREWRITTEN IN THE PRESENCE OF THE UNDERSIGNED WITNESSES. 

AS WITNESSES: 

 1.         ___________________                                          

 2.       ___________________                                                                                                   __________________________                                                                                                                                                                                                                                                                                                                                

                                                                                                                                                                                                                   NOTARY PUBLIC 

The High Court will only grant a Section 21 application if it is satisfied that three core conditions have been met. These are the "pillars" of a successful application:

• Sound Reasons:The couple must provide convincing, valid reasons for the proposed change. The Court wants to ensure the change is not frivolous or being done to hide assets. Common "sound reasons" include protecting assets from a new business venture, correcting a misunderstanding about the legal consequences of marriage, or facilitating better estate planning.
• Sufficient Notice:The couple must prove they have given adequate notice of the intended change to the Registrar of Deeds and to all known creditors. Transparency is non-negotiable.
• No Prejudice to Third Parties:This is the most critical requirement. The Court must be certain that no other person—including banks, creditors, or even children of the marriage—will be financially disadvantaged by the change. If a couple is technically insolvent (liabilities exceed assets), the application will likely fail.

2. Procedural Formalities & Notification

To ensure transparency, the Act dictates a strict notification process. The application is not a private matter; it must be advertised to the public.

• Joint Application: The application must be brought jointly by both spouses. One spouse cannot force the change upon the other.
• Public Advertisements: A notice of your intention to apply must be published in the Government Gazette and one local newspaper at least two weeks before the court hearing.
• Notification to Creditors: You must send a formal notice via registered post to every known creditor (banks, retail accounts, bondholders) at least two weeks before the hearing. Proof of these registered letters must be included in the court file.
• Registrar of Deeds Report: A copy of your application must be served on the Registrar of Deeds. The Registrar will then issue a formal report to the High Court confirming whether the proposed contract is registrable.

3. Full Financial Disclosure

The High Court requires "full and frank" disclosure of the couple’s financial status to assess if creditors are at risk. Your attorney will draft an affidavit that includes:

• Assets & Liabilities: A detailed schedule of everything you own and everything you owe.
• Insolvency Status: A sworn statement confirming whether either spouse has ever been sequestrated (or rehabilitated).
• Pending Litigation: You must disclose if any debt collection or legal proceedings are currently pending against you.
• Draft Contract: A draft of the proposed Postnuptial Contract must be annexed to the application so the Judge can inspect the new terms.

4. Finalisation: Execution & Registration

Getting the Court Order is a major victory, but it is not the final step. Once the High Court grants the order, you must legally finalize the change:

1. Execute the Contract: You must appear before a Notary Public to sign the official Postnuptial Contract. This must be done exactly as authorized by the Court.
2. Register at the Deeds Office: The signed contract must be lodged and registered at the Deeds Registry, usually within a specific period ordered by the Court (typically three months).

Crucial Note: The change in your marital regime only becomes effective against third parties (the world at large) once this registration is complete.

Need Expert Assistance?

Navigating these requirements requires a specialist touch. A single procedural error—such as missing a creditor or advertising in the wrong newspaper—can cause the High Court to dismiss your application. At Louwrens Koen Attorneys, we handle every step of the Section 21 process, from drafting the affidavit to placing the advertisements and final registration.

Contact Us

• Tel: 087 0010 733
• Email: info@louwrenskoen.co.za