By now, we have all heard the words “antenuptial contract” or the acronym ANC being thrown around in the context of prospective spouses getting ready to wed one another, including various philosophies surrounding what such a contract means in marriage. What happens, however, when a couple gets married without entering into an ANC but at some point in the marriage decide that it is necessary to change the matrimonial property regime? Alternatively, what happens when the couple wishes to vary the terms to the ANC already registered? This article will look at these very aspects.

What is an antenuptial contract/postnuptial contract?

Firstly, let us look at the definition of an antenuptial contract (ANC) and a postnuptial contract (PNC) and the implication of concluding such contracts.

An ANC is a contract entered into by two unmarried persons who are legally competent to marry one another and it essentially arranges the matrimonial property system of the spouses. The ANC serves to exclude community of property and community of profit and loss and may also include or exclude the accrual system from the marriage. Accrual is the growth, which the estate of one spouse shows during the existence of the marriage. In order for the ANC to have any force or effect, its conclusion must be followed by marriage.

A PNC is the same as an ANC, except it is executed and registered after the marriage is concluded and usually with leave of the court on application.

Should a marriage be concluded without first entering into an ANC, the marriage will be deemed to be in community of property and in community of profit and loss. Where the marriage is concluded on such basis, the spouses shall have a joint estate. For various reasons, including risky business interests by one spouse, it may become necessary to conclude a PNC and change the matrimonial system applicable to the marriage.

Change of matrimonial property regime

Regardless of how and when they were married, the spouses may jointly apply to the court for leave to change the matrimonial system applicable to their marriage.

The spouses must attach to the court application a copy of the proposed PNC that is sought to be registered. Such PNC should contain a provision that preserves the rights of creditors whose claims arose before the spouses brought the application. Furthermore:

1. A copy of the application must be served on the Registrar of Deeds and it must contain a prayer to the effect that the Registrar of Deeds is authorised and directed to register a contract in the terms set out in the attached PNC.
2. The application must deal fully with the financial position of the spouses.
3. The application must further contain reasons for the request to change the matrimonial property regime.
4. The applicants must state and explain that no other person will be prejudiced in the event of the court granting the order.
5. A list of creditors must be set out in the application.

Should the court be convinced that good reasons exist for the application, sufficient notice has been given to all creditors and that no person will be prejudiced by the proposed change, it may order that the existing matrimonial property system shall no longer apply and authorise the spouses to conclude a PNC, which will regulate their future matrimonial property system on the conditions as ordered by the court.

Should the PNC replace an existing ANC, the existing ANC or a certified copy thereof must be lodged together with the PNC to be registered. Upon the registration of a contract, the existing ANC, if any, must be cancelled or endorsed appropriately.

Please note that the above is a general overview of the process to be underwent when changing a matrimonial property regime or when spouses are looking to change the terms in their existing ANC. Depending on the facts of the matter, certain aspects of the process may differ. The reader is therefore advised to consult with an attorney and notary where necessary.