By law, couples cannot sign an antenuptial contract once they are already married. Many couples are unaware of this restriction and face legal issues when they do not seek proper legal advice before marriage. If your antenuptial contract does not meet the formalities of the Matrimonial Property Act or is not properly executed before the marriage, your marriage will be considered as Married in Community of Property.
Why is this a problem?
One of the main concerns of being married in community of property is that both spouses have unlimited liability. This means that all assets and debts (both before and during the marriage) become part of the joint estate. As a result, each spouse is fully liable for the other’s debts. Unfortunately, many couples only realize these implications after they are married.
Can You Change Your Marital Regime After Marriage?
Yes, even though you cannot sign an antenuptial contract after getting married, there is still a way to change your matrimonial property regime. In terms of Section 21(1) of the Matrimonial Property Act, couples can apply to the High Court to change their marriage from in community of property to out of community of property by registering a Postnuptial Contract. This process requires a court order to be legally valid.
Procedure for Changing a Marital Regime
To change your marital regime, both spouses must apply to the High Court, requesting permission to execute a Notarial Contract (Postnuptial Contract). This new contract will replace the old matrimonial regime and regulate the new property system.
The following requirements must be met for the application to succeed:
- Sound reasons for the proposed change must exist.
- Notice of the proposed change must be given to all creditors and the Registrar of Deeds.
- The court must be satisfied that no one will be prejudiced by the change in the marital property system.
Once the court grants an order, the Postnuptial Contract is executed and registered at the Deeds Office.
Costs of Changing a Marital Regime
The cost of drafting a Postnuptial Contract is generally the same as an antenuptial contract if the couple had signed it before marriage. However, since a High Court application is required, the overall cost is typically between R20,000 – R30,000 (excluding advocate fees). This fee usually covers:
- Legal fees for drafting the application
- Serving notice of the application on all creditors
- Serving notice on the Registrar of Deeds
- Publishing notices in two local newspapers and the Government Gazette
- Registration of the Postnuptial Contract at the Deeds Office
Important Note: If a creditor objects to the application, the process could become more complex and costly, as it will be charged at an hourly rate.
Need Help Changing Your Marital Regime?
For further assistance on how to change your marital regime, contact us at Macdecorney Attorneys Inc.. We provide professional guidance to ensure a smooth and legally compliant transition to your preferred marital property system.
