Written by: Natasha du Preez
24 August 2024
Can You Register An Antenuptial Contract (ANC) After Marriage?
Marriage is one of life’s most significant commitments, but it’s equally important to understand the legal and financial implications of your marital regime. Whether you’ve recently tied the knot or are contemplating securing your financial independence, many couples in South Africa grapple with the complexities of antenuptial contracts (ANCs).
What happens if you don’t sign an ANC before saying “I do”? Is it too late to protect your assets or define financial responsibilities? At Burger Huyser Attorneys, we specialise in family law and offer expert guidance on antenuptial contracts, marital regimes, and their legal remedies. This article explores whether it is legally possible to register an ANC after marriage and outlines the options available to you under South African law.
What Is An Antenuptial Contract?
In order to understand what an antenuptial contract is, we first have to elaborate on marriage regimes in South Africa. There are many types of marriages, such as a civil marriage, a civil union (same-sex marriage), and customary marriages, which all vary extensively in requirements but all share one important element. Marriages in South Africa fall under one of three proprietary systems:
- In community of property;
- Out of community of property without the inclusion of the accrual system
- Out of community of property with the inclusion of the accrual system.
Here’s what you need to know about antenuptial contracts:
- An antenuptial contract is a legal agreement entered into before marriage. It establishes the proprietary consequences of the marriage, such as how assets will be divided upon death or divorce.
- An antenuptial contract would be specifically important where a party to the prospective marriage is the owner of several assets, large sums of money, immovable property, provident funds, pension funds, and/or businesses/companies.
- An antenuptial contract ensures that there is a clear divide between the estates of the parties in that they remain separate legal entities and that no community of property (joinder of estates) can occur, which may prejudice one party upon death or divorce.
- When an ANC is in place, the marriage is classified as out of community of property, either with or without the accrual system.
- For the contract to be valid, it must be notarised by a notary public and registered with the Registrar of Deeds.
Can I Enter Into An Antenuptial Contract After I Have Been Legally Married?
Under South African law, an antenuptial contract must be entered into before the marriage is legally formalised for it to be valid. To register a marriage as out of community of property (with or without accrual), the notarised and registered ANC must be submitted along with the marriage certificate to the Department of Home Affairs.
If no notarised ANC is presented at the date of marriage or commencement of Lobola Negotiations, the marriage is automatically registered as in community of property, which is the default marital regime in South Africa.
What Are The Consequences Of Not Entering Into An Antenuptial Contract (Anc) Before The Marriage?
Failing to sign an ANC before marriage has significant legal consequences:
- The marriage is automatically classified as in community of property.
- Both spouses become a single legal entity, sharing all profits and losses in a joint estate.
- All assets and liabilities/debts are joined in one estate, with each spouse holding a 50% share.
- Upon death or divorce, the estate, including debts, is divided equally (50/50).
This default regime may expose one spouse to unnecessary financial risks, particularly in the event of insolvency or divorce.
What Happens If I Enter Into An Antenuptial Contract After I Have Entered Into A Legally Valid Marriage?
If an antenuptial contract is entered into after a marriage has been legally formalised, it is null and void under South African law and cannot be enforced.
The only exception is if a court grants an order to enforce and register the contract after the marriage. Without such an order, the contract has no legal standing.
What Legal Recourse Do I Have If I Want My Marriage To Be Out Of Community Of Property After I Had Already Entered Into A Legally Valid Marriage?
If you wish to change your marital regime to an “antenuptial contract” after marriage, there are several legal remedies:
- High Court Application for Late Registration of an ANC: You can apply to the High Court to request permission for an ANC’s late signing and registration. If granted, this will change your marital regime to out of community of property (with or without accrual).
- High Court Application Under Section 21 of the Matrimonial Property Act: Section 21 of the Matrimonial Property Act 88 of 1984 allows married couples to apply for a change in their marital regime. This application must show that the parties intended to be married out of a community of property and that the change will prejudice no creditors or interested parties. This includes the conclusion of an ante-nuptial agreement, which is to be registered as a post-nuptial agreement. A post-nuptial agreement has the same effect as an antenuptial contract but is signed after marriage. This agreement must be approved by a court to be valid.
What Are The Requirements To Be Met For Changing The Marital Regime?
To successfully change your marital regime, you must meet the following conditions:
- Intention to Be Married Out of Community of Property: You must prove that both parties intended this arrangement from the outset.
- Notice to Interested Parties: Creditors and other interested parties must be notified of your intention to amend the regime.
- Good Cause: You must demonstrate valid reasons for changing the regime.
- No Prejudice to Creditors: The court must be satisfied that creditors will not be negatively impacted by the change.
Consult With Expert Family Lawyers to Change Your Marriage Regime
While registering an antenuptial contract after marriage is not traditionally possible, South African law provides alternative remedies to address your marital regime. Whether through a High Court application, a post-nuptial agreement, or another legal pathway, there are options to align your marital regime with your financial and personal goals.
At Burger Huyser Attorneys, our family law specialists are committed to guiding you through these complex processes with expert legal support. If you’re considering a change to your marital regime or need advice on antenuptial contracts, contact us today for a tailored solution that safeguards your future. To speak to one of our experienced attorneys in South Africa for immediate assistance, contact us on the numbers below:
Randburg call 061 516 6878; Roodepoort call 061 516 0091; Sandton call 064 555 3358; Pretoria call 064 548 4838;
Centurion call 061 516 7117; Alberton call
DISCLAIMER: Information provided in this article does not, and is not intended to constitute legal advice. READ MORE
