Marriage and Matrimonial Property

 

 

Yes, a Postnuptial Agreement can be specifically structured to protect future inheritances. Similar to an Antenuptial Contract, you can include clauses in your Postnuptial Agreement that stipulate that any assets inherited by either spouse after the agreement is registered will remain their separate property and will not form part of a joint estate. This provides a legal mechanism to safeguard inherited wealth.

It is highly unlikely and strongly advised against attempting to draft and enter into a Postnuptial Agreement without legal assistance. The process requires a formal application to the High Court, which involves specific legal procedures and documentation. Once the court grants permission, the agreement itself is a specialized legal document that must be correctly drafted and executed before a Notary Public. Finally, the agreement needs to be registered with the Registrar of Deeds. To ensure the validity and enforceability of your Postnuptial Agreement, it is crucial to seek the expertise of experienced attorneys like those at Aucamp Attorneys.
 

The timeframe for registering a Postnuptial Contract can vary, but typically it takes approximately 3 to 4 months to obtain the necessary High Court order. Following the granting of the order, the registration of the Postnuptial Contract with the Deeds Office usually takes an additional 7 to 14 working days. Please note that these are estimated timelines and can be influenced by the specific circumstances of your application and the court's schedule.

Yes, a Postnuptial Agreement is legally binding in South Africa once the High Court has issued an order stating that your existing matrimonial property system is no longer applicable and that the Postnuptial Agreement will govern your future financial affairs. Without this court order, the agreement is not legally enforceable.

Yes, it is absolutely possible to change your matrimonial property regime after marriage in South Africa. While you cannot execute an Antenuptial Contract after the wedding, Section 21(1) of the Matrimonial Property Act specifically allows couples to apply to the High Court for permission to register a Postnuptial Contract. This enables you to change your marital property regime from "in community of property" to "out of community of property" (with or without accrual), provided you obtain the necessary approval from the High Court.

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Postnuptial Contracts

Change Your Marital Property Regime After Marriage with Aucamp Attorneys

Life can bring unexpected changes, and sometimes the matrimonial property regime you initially chose might no longer align with your current circumstances or future goals. At Aucamp Attorneys, we understand that and offer expert assistance in registering a Postnuptial Contract in South Africa. This legal instrument allows married couples to alter their marital property system after they have tied the knot.

Whether you wish to transition from being married in community of property to out of community of property (with or without accrual), or adjust specific terms of your existing regime, our experienced team can guide you through every step of the process, ensuring full compliance with the law and safeguarding your best interests.

In South African law, a postnuptial contract, also known as a postnuptial agreement or an antenuptial contract executed after marriage is a formal, legally binding agreement entered into by married couples, with the approval of the High Court, to change the way their assets and liabilities are managed and divided during their marriage and upon its termination

Why Consider a Postnuptial Contract?

Over time, various factors can lead couples to consider a postnuptial contract. Some common reasons include:

  • Freedom to Trade Gain more autonomy in your business dealings without automatically exposing your spouse to business risks.
  • Protecting Assets Shield your personal assets from your spouse's potential creditors or business liabilities.
  • Estate and Tax Planning Facilitate more effective estate and tax planning, which can be challenging when married in community of property.
  • Resolving Financial Friction Address and potentially resolve financial disagreements or differing financial management styles within the marriage.
  • Late Registration of Antenuptial Contract If you intended to enter into an antenuptial contract before your marriage but it wasn't registered on time, a postnuptial contract can rectify this.
  • Protecting Inheritances Safeguard assets you may have acquired before the marriage or through inheritance.
  • Clarity on Debt Liability Ensure that you are not held liable for debts your spouse incurs after the registration of the postnuptial contract.
  • Individual Financial Control Each spouse retains control over their own assets, builds their individual estate, and is responsible for their own debts.

Understanding the Legal Framework

Postnuptial Contracts in South Africa are governed by Section 21(1) of the Matrimonial Property Act 88 of 1984. This legislation allows couples to apply to the High Court for permission to register a postnuptial contract, effectively changing their matrimonial property regime. Additionally, Section 88 of the Deeds Registries Act provides a mechanism for applying to court for the late registration of an antenuptial contract if it wasn't registered timeously before the marriage.

The Postnuptial Contract Process with Aucamp Attorneys

At Aucamp Attorneys, we provide comprehensive assistance throughout the entire postnuptial contract process, from initial consultation to final registration. Our services include:

1. High Court Application Under Section 21
We will prepare and submit the necessary application to the High Court, detailing the reasons for the desired change in your marital property regime.
Our experienced attorneys will draft the required affidavits and supporting documentation.
We will represent you in court to ensure a smooth and successful application process.
2. Drafting of the Postnuptial Contract
Once the High Court grants permission, our team will draft a tailored postnuptial contract that accurately reflects your agreed-upon changes.
We ensure the contract complies with all legal requirements and addresses your specific financial and personal needs.
3. Notarization of the Postnuptial Contract
Your drafted contract will be notarized by our qualified Notary Public, confirming its authenticity and legal enforceability.
4. Registration of the Postnuptial Contract
We will handle the registration of your postnuptial contract at the Deeds Office, ensuring the changes to your matrimonial property regime are officially recorded and legally binding.

Legal Requirements for a Postnuptial Contract

To successfully register a postnuptial contract in South Africa, the following requirements must be met:

  • Mutual Consent Both spouses must willingly consent to the change in their matrimonial property regime.
  • Written Contract The agreement must be in writing and signed by both parties.
  • High Court Approval A formal application must be made to the High Court for approval of the postnuptial contract.
  • Notice to Registrar of Deeds Notice must be given to the Registrar of Deeds as per Section 97(1) of the Deeds Registry Act.
  • Draft Contract Annexed The proposed postnuptial contract must be attached to the court application and initialled by both parties.
  • Public Notice Notice of the intention to apply for the postnuptial contract must be published in the Government Gazette and two local newspapers at least two weeks before the court hearing. This notice must clearly state the date of the application and allow any interested party to submit written representations to the Registrar of the High Court.
  • Notification of Creditors All known creditors of both spouses must be notified of the application via registered post at least two weeks before the hearing. A list of creditors and proof of notification must be included in the application.
  • Sound Reasons The application to the High Court must provide valid and well-substantiated reasons for the proposed change in the matrimonial property regime.
  • No Prejudice to Third Parties The court must be satisfied that the proposed change will not unfairly prejudice any third parties, such as creditors or children.
  • Solvency Neither spouse should be insolvent or have sequestration proceedings or judgments pending against them at the time of the application.

Why Court Approval is Necessary

The requirement for High Court approval serves several crucial purposes:

  • Protection of Creditors It ensures that the change in marital regime does not unfairly disadvantage existing creditors who may have extended credit based on the couple's previous joint estate (if married in community of property).
  • Ensuring Consent The court verifies that both spouses genuinely and freely consent to the postnuptial contract without any coercion or undue influence.
  • Maintaining Legal Certainty It provides a formal legal process for altering a fundamental aspect of the marital relationship, ensuring clarity and preventing future disputes.

Types of Marital Regimes You Can Choose

When entering into a postnuptial contract, you can typically choose between two main matrimonial property regimes:

  1. Out of Community of Property with Accrual Each spouse retains separate ownership of their assets and liabilities acquired before and during the marriage. However, upon divorce or death, the increase in the value of each spouse's estate (the accrual) during the marriage is shared equally.
  2. Out of Community of Property without Accrual Each spouse maintains complete separation of their assets and liabilities, both those owned before the marriage and those acquired during the marriage. There is no sharing of accrual upon dissolution of the marriage.

Late Registration of Antenuptial Contracts

At Aucamp Attorneys, we are committed to providing expert legal guidance and support throughout the postnuptial contract process. Our experienced attorneys possess a deep understanding of the relevant legislation and court procedures.

If you and your spouse entered into an antenuptial contract before your marriage but failed to register it within the stipulated timeframe, you can apply to the High Court for permission to register it late in terms of Section 88 of the Deeds Registries Act. Aucamp Attorneys can also assist you with this specific legal process.

When you are ready to explore your options for a postnuptial contract? Contact Aucamp Attorneys today for a consultation. Let us assist you in securing your financial future and aligning your marital property regime with your current needs and aspirations.