Antenuptial and Postnuptial Contracts

We provide advice regarding the different matrimonial systems applicable in South Africa, and attend to the drafting and registration of antenuptial and postnuptial contracts.

Ante Nuptial Agreement must be drawn and attested to in front of a Notary Public prior to registration in the Deeds Office. Of further importance for a valid Ante Nuptial Agreement, is that same must be signed in the presence of a Notary Public and witnesses, prior to the intended marriage, and must be registered within three months from the date of signature.

If you require a notarised antenuptial or postnuptial agreement contact us at notary cape town a division of Le Roux Attorneys.

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If you need legal advice or drafting of a legal document feel free to get in touch with us, we’re more than happy to help you with your query

Why is an antenuptial contract important?

An antenuptial contract arranges the matrimonial property regime applicable between spouses. The main purpose of an antenuptial contract is to exclude the community of property and profit and loss.

It also regulates whether the accrual system is to be included or excluded from a marriage. The contract must be followed by a marriage to have any force and effect and has to be registered at the Deeds Office

What are the proprietary consequences of a marriage?

The proprietary consequences of a marriage are governed by the law of the country in which the husband was domiciled at the time of the conclusion of the marriage.

The automatic matrimonial property regime applicable in South Africa is the marriage in community of property and profit and loss.

This means that unless the community of property and profit and loss is excluded by means of entering into an antenuptial contract, prior to the marriage being solemnised, the parties will be married in community of property and profit and loss.

When would I need an antenuptial contract?

The main purpose of an antenuptial contract is to exclude the community of property and profit and loss as well as to include or exclude the accrual system.

If parties do not want to be married in community of property and profit and loss, they will have to enter into an antenuptial contract prior to the marriage being solemnised.

Who will be able to assist me with the attestation and registration of an antenuptial contract?

Antenuptial contracts executed in South Africa must be attested by an admitted and practising Notary Public and must be registered in a deeds registry within 3 months after the date of its execution.

Antenuptial contracts executed outside South Africa must be attested by an admitted and practising Notary Public or otherwise be entered into in accordance with the law of the place of its execution, and must be registered in a deeds registry within 6 months after the date of its execution.

What is the difference between an antenuptial contract and a postnuptial contract?

An antenuptial contract is a contract regulating the proprietary consequences of a marriage, executed before the marriage of the spouses. This contract must be registered in a deeds registry within a prescribed period in order for it to have any force and effect.

The spouses may jointly apply to the court for leave to change the matrimonial system applicable to their marriage.

If the court is convinced that good reasons exist for the application, sufficient notice has been given to all creditors and no person will be prejudiced by the proposed change, it may order that the existing matrimonial property system shall not apply to the marriage anymore and authorise the spouses to conclude a postnuptial contract which will regulate their future matrimonial property system.

A postnuptial contract is, therefore, a contract regulating the proprietary consequences of a marriage, executed after the marriage of spouses.

Are postnuptial agreements legally binding?

If spouses want to change the matrimonial property system applicable to their marriage, they will jointly have to apply to the court for leave to change the matrimonial property system.

A postnuptial agreement will only be legally binding once the court ordered that the existing matrimonial property system shall no longer be applicable, and the postnuptial agreement will regulate the spouse’s future matrimonial property system.