By: Jehoshaphat John Njau 17 February 2022
We glad you asked. In terms of the Recognition of Customary Marriages Act 120 of 1998, spouses married in terms of customary law without concluding a prenup (antenuptial contract) are automatically and by default married in community of property.
According to the Matrimonial Property Act 88 of 1984 (MPA) parties who wish to get married out of community of property both in civil marriage and customary marriage must enter into an antenuptial contract before the marriage ceremony is concluded.
The question therefore is, can spouses who have already concluded a customary marriage still enter into an antenuptial contract so as to change their matrimonial property regime from in community of property to out of community of property?
The good news is - the answer is yes. Spouses married in terms of customary law who did not conclude an antenuptial contract before the customary marriage ceremony was concluded - can conclude an antenuptial contract after the conclusion of their ceremony – this is called a postnuptial contract by virtue of s 21 (1) of the Matrimonial Property Act (MPA).
In terms of the MPA, postnuptial contract will be concluded with the permission of the High Court, whereby a court application will be made to the High Court where the parties reside, asking the court’s permission to sign a postnuptial contract after the conclusion of parties’ marriage – so as to have the marriage converted from in community of property to out of community of property.
Steps to be followed:
In order for the court to grant the order in favour of the spouses, the MPA provided the following requirements:
- Good and sound reasons for the proposed change;
- All the spouses’ creditors and the Registrar of the Deeds have to be notified of the proposed changes; and
- The High Court must be convinced that no other party will be negatively affected by the proposed changes of the matrimonial property system from in community to out of community.
Once the court is happy, a court order will be granted, the postnuptial contract will be executed and thereafter registered in the Registrar of the Deeds.
Information needed:
In order for us to prepare your court application, we will require the following documentation:
- Copies of the marriage certificate if the marriage was registered with home affairs or confirmation that the customary marriage was negotiated, entered into or celebrated;
- Copies of identity documents of both spouses;
- Reasons why an antenuptial contract was not registered prior to the customary marriage;
- Reason why you now wish to conclude a postnuptial contract;
- Full details of assets that both spouses currently own.
Should you be interested in concluding a postnuptial contract complete the form under contact us or reach us on WhatsApp on 066 061 3261 or call us on 087 164 04 69 and we will be happy to serve you.