In terms of South African Law, when a couple does not sign an ante-nuptial contract before getting married, the marital regime applicable to their marriage will be that of in community of property. This means that the couple will share equally in one joint estate, they are jointly and severally liable towards their creditors and neither party holds an independent contractual capacity.

An antenuptial contract can be void or voidable for a number of reasons. The antenuptial contract may be defective for example in respect of the identity of the signatories and may therefore be declared void from the beginning as if it never existed.

Another further example could be that the couple may have legally drafted and executed an antenuptial contract prior to marriage, but for some reason, it was not registered in the Deeds Office within three months from the date of marriage. The issue which arises in this instance, if the antenuptial contract was not registered, will be that the couple are married in community of property.

Section 21(1) of the Matrimonial Property Act 88 of 1984 provides that spouses may apply jointly to the High Court for consent to vary and or amend the matrimonial property regime which applies to their marriage.

The following requirements need to be met in order to amend the matrimonial property regime which applies to a couple’s marriage, namely :

  • There must be sound reasons for the proposed variation;
  • Notice of the intention to change must be given to the Registrar of Deeds, it must be published in the Government Gazette and two local newspapers at least two weeks prior to the date on which the Application will be heard in the HIgh Court and same must be sent by certified post to all known creditors;
  • The draft notarial contract, which the parties propose to register, must also be annexed to their Application to the High Court;
  • No other person will be prejudiced by the proposed change;
  • The rights of creditors must be preserved in the proposed contract;
  • The Application to the High Court must contain sufficient information about the parties’ assets and liabilities to enable the Court to ascertain whether or not there are sound reasons for the proposed change and whether or not any particular person will be prejudiced by the change.

Once the High Court is satisfied that the requirements have been met, it will make an Order that the existing matrimonial property regime no longer applies to the marriage and it will authorise the couple to enter into an ANC by which their future matrimonial property regime will be regulated.

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Author – Kate Bailey – Hill

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