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Amending your antenuptial contract after its registration

Amending Your Antenuptial Contract After Its Registration

Your antenuptial contract is one of the most important boxes to tick off of your proverbial wedding to do list before you say “I do”. If you do not enter into an antenuptial contract before date of marriage, you will automatically be married in community of property in terms of South African law. What this means, is that you and your spouse will each jointly own all assets and liabilities accrued by either party before the marriage and during the marriage in equal shares.

More and more couples are realising that a marriage in community of property holds little benefits while the financial risk and exposure is tremendously high. On the other hand, the main goal of an antenuptial contract is to ensure that there is complete transparency in your relationship by recording the rights, duties and consequences of the marriage and because each party’s assets and liabilities are their own, you are entirely financially protected. An antenuptial contract not only dictates your financial future after marriage but also how you transact with third parties.

It is thus very important to ensure that your antenuptial contract encapsulates your specific needs. Another reason for ensuring that you are wholly satisfied with your antenuptial contract and the marital property regime selected, is the difficulties you will face should you wish to amend your contract after date of registration or if you wish to change your marital property regime entirely.

Amendments to your antenuptial contract after registration
As soon as the antenuptial contract has been registered in the Deeds Office and confirmed by your marriage, it cannot be altered inter partes (between the parties) informally. The only way to amend the contract is by way of both parties to the contract bringing an application in the High Court in terms of section 21 of the Matrimonial Property Act No 88 of 1984.

The Court will look at the validity of the parties’ reasons for the request for an amendment and based thereon, grant an order for the rectification or amendment of the contract to reflect the true intentions of the parties. However, all other parties concerned must consent to the rectification, and the rights of creditors and third parties are protected first and foremost.

As the parties’ creditors might be prejudiced by this change in the contract, an advert needs to be placed in the local newspaper to inform all concerned parties of the intended amendments. They will have the opportunity to oppose the application with reasons should the change affect them in a negative way.

It is also important to note that there are certain further requirements for bringing this court application:
• both spouses must consent to the modification of the antenuptial contract
• neither of the spouses may be insolvent or have sequestration proceedings in process against them
• neither spouse may have any judgments against them.

A High Court application will be very costly for the parties and, as mentioned, there are strict requirements to adhere to for such application to be successful. Furthermore, if the parties are the registered owners of any immovable property and the ownership thereof is affected by this change to the antenuptial contract, the title deeds of said properties must be endorsed in terms of section 45bis of the Deeds Registries Act 47 of 1937. This endorsement will also lead to further expenses for the parties as a conveyancer will need to be appointed.

Amendment to rectify a simple error in the contract
An amendment to rectify an error in the antenuptial contract can be done by means of an application to the Registrar of Deeds in terms of Section 4(1)(b) of the Deeds Registries Act as aforementioned.

However, there are only certain circumstances in which this route can be taken and not any amendment can be done this way.

Examples of errors that can be rectified in this manner are:
• an error in the name of a party
• an error in the date of birth of a party
• an error in the identity number of a party
• an error in the property description in a donation clause
• an error in the number of the life insurance policy to be ceded.

The conditions of the antenuptial contract cannot be amended by deleting or adding any other conditions to the contract. Only simple errors that would not affect the contents or intention of the contract can be amended in this way.

Changing your marital property regime
Parties can change their matrimonial property regime in the same way as amending your antenuptial contract – with a High Court application. 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. Once again, a costly route that should rather be avoided if possible.

It is clear from the above, that it will become a very costly exercise to attempt to amend your antenuptial contract after its registration or to change your matrimonial property regime. It is therefore of the utmost importance that spouses ensure their contract is in line with their expectations and that they understand the contents and the implementation thereof in practice. Contact us today for professional advice on matrimonial property regimes and the drafting of a tailormade antenuptial contract!

© Arinda Truter - Schoemanlaw Inc. - 2017

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