If you do not execute an antenuptial contract prior to marriage, you will deem to be married In Community of Property in terms of South African law. The consequence would be the same if you signed a contract, but it was not registered within three (3) months from the date of signature.
It is possible to change your matrimonial property regime from “in” to “out” of community of property by registration of a Postnuptial Contract in terms of Section 21(1) of the Matrimonial Property Act. Similarly, if your contract was not registered timeously you may apply to court for permission for late registration of your contract in terms of Section 88 of the Deeds Registries Act. Let Louwrens Koen Attorneys assist with this process. From start to finish.Visit our separate website exclusively dealing with Postnuptial Contracts
The most common reasons our clients decide to apply to the high court for permission to enter and register a postnuptial agreement:
Why must the application be brought before court?
- Freedom to trade.
- Exposing spouse to creditors and business risk.
- Risk of joint estate at death of either spouse.
- Parties cannot do effective Estate or Tax planning being married in community of property.
- Being married in community of property causes friction in the marriage.
- Parties entered into an antenuptial contract before marriage but the contract was nor registered in time or at all.
- The parties will not be held liable for the debts of a spouse that such spouse may have incurred after registration of the postnuptial contract.
- The parties will not be held liable for the debts of a spouse that such spouse may incur after registration of the postnuptial contract.
- Assets may be protected, particularly if one of the spouses has a business in his or her own name. The parties may decide to register assets such as their residential property in the name of only one spouse, being the spouse with the lowest risk profile. The assets of each spouse will also be safe if the other spouse is sequestrated.
- One or both spouses may have assets prior to the marriage that they want to exclude from the joint estate.
- Spouses may enter commercial transactions without the consent of their spouse.
- Each spouse retains control over his or her assets, builds his or her own estate and is responsible for his or her own debts.
- The High Court deals with the change in status of parties (from being married in community of property to being married out of community of property).
- A couple married in community of property has a communal estate, meaning that all the assets and liabilities form part of the communal estate.
- When the couple decides to change their matrimonial property regime, the creditors might be prejudiced by the change in the matrimonial property regime.
- It is also important to note that both spouses must consent to the change, and neither of the spouses must be insolvent or have sequestration proceedings, or judgments against them, as the creditors (who are notified of the change in marital regime) might oppose the application in court.
In order to change your marital property system, you need to obtain consent from the High Court.
- Simply contact us by e-mail and supply your contact details and date of marriage.
- Receive our confirmation letter, relevant information, and invoice.
- Effect payment of the required deposit by EFT or direct deposit and send us proof by e-mail.
- Receive our draft contracts (for both options) and choose your preferred option. Inform us of your choice and any desired amendments by e-mail.
- We will call you to discuss your choice and confirm the amendments you wish to make. We will finalise your Post-nuptial Contract accordingly and proceed to draft the required affidavits for you and your spouse.
- We will request any additional required information by e-mail and e-mail you the drafts in PDF format for your perusal and signature.
- We will arrange for the documents to be picked-up by courier in order to be enrolled
- Once the Court Order has been granted, the Post-nuptial Contract will be sent off for registration.
We will keep you updated as the registration process progresses, until we received the registered Post nuptial
Contract back from the Registrar of Deeds. We will then scan and e-mail you a copy of the registered contract before we mail the original to you.
Our costs are as follows:
Visit our separate website exclusively dealing with Postnuptial Contracts
|Taking instructions, first consultation, drafting of the Founding Affidavit, Supporting Affidavit, Notice of Motion, drafting letters to creditors, Drafting of Advertisements and placement thereof, instructions to advocate in the form of a brief, including delivery of brief to advocate.
|Attendance to Court to obtain a case number and court date and subsequent lodgement of Documents at the Deeds Office for obtaining the deeds office report, cost involved
|Delivery of Court documents at the Deeds Office for obtaining the report, lodgement of court documents, collection thereof and deeds offices fee in obtaining the report
|Provision for S.21(1) Advertisements: Local Newspaper, as well as advertisement in the Government Gazette
|Sending copy of the advertisement in the Local Newspaper, as well a Government Gazette to each and every creditor by registered mail
|Advocate’s Fee for application at Court
|Drafting of Antenuptial Contract, attending to execution thereof before Notary Public, and attending to registration thereof in the Deeds Registry
|Deeds Office fee
|General Postage and Petties