Changing your marital property regime

09 Dec 2020

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.

It is important to sign an antenuptial contract to protect the financial status of the couple, to determine 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. An antenuptial contract which is defective in respect of the identity of the signatories 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. If an antenuptial contract is not registered, the legal consequences are that the marriage will be considered to be 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 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. Contact SchoemanLaw for your antenuptial and post-nuptial needs.

(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)