WHAT ARE THE REQUIREMENTS for a postnuptial contract?

WHAT ARE THE REQUIREMENTS for a postnuptial contract? image
A Postnuptial Contract can be registered in terms of Section 21(1) of the Matrimonial Property Act. This application is brought by one of the parties, with the assistance of the other spouse. The application must be brought before the court, which will give an order for the registration of a postnuptial contract. After the order is granted, the parties will sign a postnuptial contract which will be registered in the Deeds Office. The postnuptial contract can then be concluded as out of community of property, with or without the accrual.

Requirements for a postnuptial contract:
  • Notice must be given to the registrar of deeds, as per section 97(1) of the Deeds Registry Act.
  • The draft postnuptial contract proposed must be annexed to the application and initialled.
  • Notice of intent to make the application must be published in the Government Gazette and two local newspapers at least two weeks before the application will be heard.
  • The notice must expressly state the date the application will be made and allow any interested party to make representations in writing to the registrar of the High Court.
  • Two weeks’ notice must be given by registered post to all known creditors of the spouses and a list of creditors must be included in the application, together with proof that they have been given notice.
Why must the application be brought before court?

  1. 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).
  2. A couple married in community of property has a communal estate, meaning that all the assets and liabilities form part of the communal estate.
  3. When the couple decides to change their matrimonial property regime, the creditors might be prejudiced by the change in the matrimonial property regime.
  4. 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.