Antenuptial contracts (ANCs) have long given South African couples a sense of security when defining how their assets will be treated during a marriage and upon divorce or death. Many assume that once an ANC is signed and registered, it is set in stone. But the law is more nuanced than that - and understanding the mechanisms available to change or challenge your matrimonial property regime can be critically important.
The Default Position: In Community of Property
If a couple marries in South Africa without an antenuptial contract, they are automatically married in community of property. This means that all assets and liabilities - including those brought into the marriage and those acquired during it - are shared equally in a joint estate. On divorce, the joint estate is divided equally between the spouses, regardless of who earned or contributed what.
Many couples are unaware of this default and later wish they had entered into an ANC before their wedding. Others who did sign an ANC come to regret certain provisions - particularly the accrual system - and want to change them.
What Is an Antenuptial Contract?
An ANC is a notarial deed signed before a marriage and registered in the Deeds Office. It takes the couple out of the default community of property regime. There are two main options:
Out of community of property without the accrual system - Each spouse retains their own estate throughout the marriage. On divorce, there is no sharing of assets accrued during the marriage. Each spouse walks away with what they individually own.
Out of community of property with the accrual system - Each spouse retains their own estate during the marriage, but on dissolution (divorce or death), the spouse whose estate has grown less is entitled to share in the accrual (growth) of the other's estate. This is generally regarded as the most equitable option for couples where one spouse earns significantly more than the other.
Can You Change Your ANC After Marriage?
Technically, an ANC must be executed before the marriage - this is a strict legal requirement. However, the law does provide a mechanism for married couples to change their matrimonial property regime after the marriage has taken place.
Section 21(1) of the Matrimonial Property Act 88 of 1984 allows spouses to apply to the High Court for leave to change their matrimonial property system. This is not a simple or automatic process, but it is available and is used more often than many people realise.
The Section 21 Application Process
To apply under section 21, both spouses must:
- Apply jointly to the High Court in the area where they are domiciled.
- Show good cause - the court must be satisfied that there are sound reasons for the change and that no other person will be prejudiced by it.
- Give notice to all creditors and any other interested parties, who are entitled to object to the application.
- Publish a notice in the Government Gazette and a local newspaper.
- Enter into a notarial deed setting out the new matrimonial property arrangement, which must be registered in the Deeds Office.
The court has a wide discretion to grant or refuse the order. Applications that are brought to deliberately defeat creditors or to prejudice third parties are unlikely to succeed. However, legitimate applications - for example, where circumstances have changed significantly since the marriage, or where the parties were not properly advised before the ANC was signed - are routinely granted.
Common Reasons Couples Apply
- One spouse has become insolvent, and the other spouse wishes to protect their own assets from being affected by the joint estate.
- The financial dynamics have shifted significantly since marriage - for example, one spouse has built a successful business while the other has taken on a primary caregiving role.
- The couple was advised incorrectly at the time of signing, and they now wish to opt in or out of the accrual system.
- They married without an ANC and now wish to exit the community of property.
Practical Considerations
Changing a matrimonial property regime is not without cost or complexity. The process requires legal representation, court appearances, publication in the Gazette, and registration of a new notarial deed. The entire process can take several months.
It is also important to understand that changing from in community of property to out of community of property does not automatically divide the existing joint estate - the parties will need to agree on how the assets and liabilities are to be divided as part of the application.
What This Means for You
If you are unhappy with your current matrimonial property arrangement, or if you signed an ANC without fully understanding the implications, you are not necessarily stuck. The law provides a pathway to change, but it requires careful legal guidance.
At Spence Attorneys, we advise couples at all stages - before marriage, during marriage, and at the point of separation or divorce - on the implications of their matrimonial property regime and the options available to them.
If you believe your ANC may no longer reflect your circumstances or intentions, contact us to discuss your options in confidence.