If you married without an Antenuptial Contract (ANC), South African law automatically placed you in community of property — a regime where you and your spouse share one joint estate and bear full joint liability for each other's debts. Many couples only discover the real implications of this when they start a business, buy property, or face a financial setback. The good news: it is never too late to change your marital regime. Under Section 21(1) of the Matrimonial Property Act 88 of 1984, you can apply to the High Court for permission to register a Postnuptial Contract and move to a regime that protects your individual financial interests.
This guide explains what a postnuptial contract is, when you need one, how the process works, what it costs, and what to expect — so you can make a fully informed decision.
A postnuptial contract (also referred to as a post-nuptial contract or Section 21 agreement) is a notarially executed and registered legal document that changes your matrimonial property regime after marriage has already taken place. Most couples use a postnuptial contract to move from in community of property to one of the following:
Once registered at the Deeds Office, the new regime is effective against the world — including banks, creditors, and SARS.
Being married in community of property is rarely advantageous in today's economy. Here are the most common situations that bring couples to our offices:
In a joint estate, signing personal surety for a business loan exposes your spouse's assets entirely. If the business is sequestrated, the joint estate — including the family home, vehicles, and savings — may be liquidated to satisfy business debts. A postnuptial contract allows couples to register key assets in the name of the lower-risk spouse, protecting the family from the financial consequences of entrepreneurial risk.
Under community of property, you require your spouse's written consent to purchase immovable property, enter into credit agreements, or bind yourself as surety. A postnuptial contract removes this administrative burden and restores individual commercial autonomy.
Once the postnuptial contract is registered, neither spouse is liable for debts the other incurs after that date. This firewall is especially valuable where one spouse has a risky business or a history of credit difficulties. Note that existing debts at the time of registration remain joint obligations.
Many couples intended to sign an Antenuptial Contract before their wedding, but ran out of time or received poor advice. A postnuptial contract can help you correct this. In cases where an ANC was signed before a Notary but never registered at the Deeds Office within the mandatory three-month window, a Section 88 application can effectively restore the regime you originally intended — with retrospective effect to the date of marriage.
South African law recognises your marriage as having commenced from the moment lobola negotiations were concluded — not from the date of your civil ceremony at Home Affairs or church. If you did not sign an ANC before those customary rites were completed, you are married in community of property, and a postnuptial contract is the only available remedy.
Separate estates offer considerably greater flexibility for structuring your inheritance, minimising estate duty, and ensuring that specific assets — such as a family farm, trust interest, or inheritance — are preserved for children from a previous relationship and not absorbed into a joint estate calculation.
Financial stress is consistently cited as one of the leading causes of marital breakdown. A joint estate, with its shared liability and the requirement of mutual consent for major transactions, often creates a parent-child dynamic that breeds resentment. Separate estates promote mutual respect and financial autonomy — and many couples report that registering a postnuptial contract had a positive effect on their marriage.
Unlike an Antenuptial Contract — a straightforward notarial registration that takes as little as one day — a postnuptial contract requires a formal High Court application. This is because your existing joint estate affects the rights of third parties such as creditors, and the Court must be satisfied that those rights are not being prejudiced. At Louwrens Koen Attorneys, we manage the entire process on your behalf.
Timeline - The entire process typically takes three to five months, depending on the applicable High Court's roll and Deeds Office timelines. We provide regular progress updates throughout and use a streamlined online system to minimise administrative delays.
The High Court will grant your application only if it is satisfied that three core conditions have been met:
In addition, both spouses must consent to the change — one spouse cannot unilaterally force a change in marital regime.
Important: A single procedural error — such as missing a creditor notification or advertising in the wrong newspaper — can cause the High Court to dismiss your application. This is why it is essential to use an attorney who has processed a high volume of these applications and knows exactly what is required.
One of the most common questions we receive is: "Why does a Postnuptial Contract cost so much more than an Antenuptial Contract?" The answer lies entirely in the complexity of the process involved.
| Antenuptial Contract | Postnuptial Contract | |
|---|---|---|
| When registered | Before marriage | After marriage |
| High Court approval required | No | Yes |
| Newspaper advertisements required | No | Yes |
| Advocate required | No | Yes |
| Typical timeframe | 7–14 working days | 3–5 months |
| All-inclusive cost | ±R1 950 | ±R20 000 |
| Legal complexity | Low — standard notarial procedure | High — full High Court litigation |
Our R20 000 all-inclusive fee covers attorney and notary fees, advocate fees for the High Court appearance, Government Gazette and newspaper advertisement costs, registered-post creditor notifications, and Deeds Office registration fees. There are no hidden disbursements. When weighed against the alternative — remaining in community of property where a single business failure or sequestration could cost you your home, vehicle, and retirement savings — the cost is a sensible and proportionate investment in your family's financial security.
There are two distinct legal routes for a postnuptial change, and many attorneys are unaware of the difference. The route that applies to you depends on your specific circumstances:
We assess which route applies during your initial consultation and advise accordingly.
Can we still apply if we have significant debt?
Possibly, but it depends on the nature and extent of the debt. The Court will not approve an application where existing creditors would be materially prejudiced. We assess your position honestly during the initial consultation and advise on your realistic prospects before you commit to the process.
Does a postnuptial contract protect us from debts incurred before registration?
No. The new regime is prospective only — it takes effect on the date of Deeds Office registration. Debts that existed before registration remain joint obligations. The contract provides a firewall against debts incurred by either spouse after the registration date.
Does this apply to customary marriages?
Yes. Section 21 of the Matrimonial Property Act applies to customary marriages as well as civil marriages. Customary marriages are automatically in community of property unless an ANC was signed before the customary rites (such as the conclusion of lobola negotiations) were completed.
Our ANC was signed but never registered at the Deeds Office — what now?
This is typically dealt with via a Section 88 application rather than Section 21. The key advantage is retrospective effect — if the Court is satisfied that you genuinely intended to marry out of community, the order treats your regime as having been out of community from the date of marriage. We advise on which route applies to your specific circumstances.
Do we need to appear in court?
Generally no. We brief an advocate who appears on your behalf. You will, however, need to appear before the Notary Public to sign the Postnuptial Contract after the Court Order is granted — this can usually be done at our Pretoria offices or, in certain circumstances, remotely.
How do creditors find out about the application?
Through the mandatory Government Gazette and newspaper publications, and via the registered-post letters sent to all known creditors. Any creditor who believes they will be prejudiced by the change is entitled to appear in Court and oppose the application.
How long does the process take from start to finish?
Typically three to five months. The main variables are the specific High Court's roll (how quickly cases are heard) and the Deeds Office lodgement queue. We keep you updated at every stage and use a streamlined digital intake process to minimise delays on our side.
Can one spouse force the other to sign a postnuptial contract?
No. The application must be brought jointly by both spouses, and both must consent. Neither spouse can compel the other to change the marital regime.
We have been practising as attorneys, conveyancers, and notaries since 1995, and antenuptial and postnuptial contracts are a core specialisation of our practice. We have assisted thousands of couples across South Africa with their matrimonial contract needs.
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