When couples decide to get married, they often focus on wedding planning and the excitement of starting their lives together. However, one crucial aspect of marriage that can have long-term legal and financial implications is the marital property regime they choose.
In South Africa, an antenuptial contract (ANC) must be signed before marriage if a couple wants to be married out of community of property. But what happens if you did not sign one before marriage? Can you get an antenuptial contract after marriage, or are there alternative ways to change your marital regime?
This blog explores antenuptial contracts, whether you can get one after marriage, and what legal steps are available for couples who want to change their marital regime.
What is an Antenuptial Contract
An antenuptial contract (ANC) is a legally binding agreement signed before marriage that determines how a couple’s assets, debts, and financial responsibilities will be handled during the marriage and in the event of divorce.
In South Africa, if a couple does not sign an antenuptial contract before getting married, they are automatically married in community of property. This means:
- All assets and debts are jointly owned by both spouses.
- If one spouse accrues debt, the other is equally liable.
- Each spouse has an equal share of assets, regardless of who earned them.
To avoid this, couples sign an antenuptial contract to be married out of community of property, either:
- Without accrual – Each spouse retains full ownership of their assets and debts.
- With accrual – Spouses keep their assets separate before marriage, but any wealth accumulated during marriage is shared equally.
Can You Get an Antenuptial Contract After Marriage?
No, you cannot sign an antenuptial contract after marriage in South Africa. If you did not sign an ANC before marriage, you are automatically married in community of property, and your financial affairs will be governed by this regime.
However, if you and your spouse wish to change your marital property system, there is an alternative legal process available.
Changing Your Marital Regime After Marriage
Although you cannot sign an antenuptial contract after marriage, South African law allows couples to apply to change their marital regime through a legal process known as a Section 21(1) application under the Matrimonial Property Act.
Steps to Change Your Marital Regime
- Both Spouses Must Agree
The application can only proceed if both spouses consent to changing their marital regime. - Drafting a Postnuptial Contract
A postnuptial contract is drawn up, outlining the new marital regime (out of community with or without accrual). - High Court Application
A formal application is submitted to the High Court, explaining why the couple wants to change their marital regime. - Public Notice
The couple must publish a notice in the Government Gazette and local newspapers, allowing creditors to object if they believe they will be affected. - Creditor Approval
If there are no objections or debts that would be unfairly impacted, the court can grant approval for the regime change. - Registration of the New Contract
Once approved, the postnuptial contract is registered at the Deeds Office, making it legally binding.
Alternative Methods to Change Your Marital Property Regime
As you cannot get an antenuptial contract after marriage, the following options are available for couples wanting to modify their financial arrangements:
1. Postnuptial Contract
A postnuptial contract is similar to an antenuptial contract but can only be implemented after a successful court application. It allows couples to switch from community of property to out of community of property, protecting assets and separating financial responsibilities.
2. Divorce and Remarry with an ANC
While extreme, some couples divorce and then remarry with an antenuptial contract in place. This method is legally possible but can be costly and emotionally challenging.
3. Estate Planning and Wills
If changing your marital regime is not an option, proper estate planning and wills can ensure that assets are distributed according to your wishes rather than being divided equally under community of property laws.
Why Consider Changing Your Marital Regime?
Couples who initially marry in community of property often seek to change their regime for the following reasons:
- Protecting Individual Assets – Especially important for business owners or those with significant personal wealth.
- Debt Liability Protection – Prevents one spouse from being held responsible for the other’s financial obligations.
- Ensuring Financial Independence – Allows each spouse to manage their finances without restrictions.
- Estate Planning and Inheritance – Makes it easier to structure wills and ensure assets are distributed according to personal wishes.
Conclusion
While you cannot sign an antenuptial contract after marriage, couples who wish to change their marital regime can apply for a postnuptial contract through the High Court. This process allows couples to shift from community of property to out of community of property, offering greater financial protection and independence.
If you are considering changing your marital property regime, it is essential to consult with a family law attorney to navigate the legal process efficiently. Making the right legal decisions today can safeguard your financial future.
FAQ
How much does a postnuptial agreement cost in South Africa?
A postnuptial contract involves legal fees for drafting the contract, court applications, and registration with the Deeds Office. Costs typically range between R10,000 and R25,000, depending on legal complexities.
Can you change your marriage contract after marriage?
Yes, but not through an antenuptial contract after marriage. Couples must apply to the High Court to change their marital regime, which involves a legal process, public notice, and creditor approval.
What is the difference between an antenuptial and postnuptial contract?
- Antenuptial Contract (ANC) – Signed before marriage to establish an out of community of property regime.
- Postnuptial Contract – Signed after marriage but requires High Court approval to change the marital regime.
What makes an antenuptial contract invalid?
An antenuptial contract may be deemed invalid if:
- It contains illegal clauses that violate South African law.
- It is not signed before the marriage.
- It is not notarised by a notary public.
- It is not registered with the Deeds Office within three months of marriage.